Orissa High Court

Sradhanjali Mishra vs Aswini Kumar Mohapatra .... Opposite ... on 11 March, 2025

                   IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  CRLMC No.1659 of 2024
                 Sradhanjali Mishra             ....               Petitioner(s)
                                                Mr. M. M. Ansari, Advocate

                                         -versus-

             Aswini Kumar Mohapatra             ....           Opposite Party(s)
                                                     Mr. A. Pradhan, Advocate

                     CORAM: JUSTICE SIBO SANKAR MISHRA

                                       ORDER

Order No.                             11.03.2025
 07.        1.        Heard.

2. The petitioner has assailed the order dated 05.04.2024

passed by the learned CJ (JD)-cum-J.M.F.C., Sambalpur in I.C.C.

Case No.270 of 2018, whereby the application moved by the

petitioner under Section 254(2) of Cr.P.C. for sending the specimen

writings together with the subject cheque (Ext.1 & Ext.2) to FSL

for opinion has been turned down.

3. The opposite party has initiated a complaint proceeding

being I.C.C. Case No.270 of 2018 against the petitioner inter alia

alleging that the petitioner had taken a loan of Rs.8,00,000/-

(Rupees eight lakhs) from the opposite party and towards discharge

of the said legal debt issued two cheques amounting to

Rs.4,00,000/-. On presentation of the same, the cheque was returned

unpaid. Therefore, the opposite party issued notice under Section

138(b) of the N.I. Act and subsequently initiated the complaint

proceeding as the petitioner alleged to have not responded to the

notice issued by him.

4. The trial of the case proceeded. The accused-petitioner was

also cross-examined by the learned trial Court. At that stage, on

19.01.2024, the petitioner moved the application before the learned

J.M.F.C., Sambalpur under Section 254(2) Cr.P.C. seeking a

direction from the learned trial Court to refer documents as

mentioned above to forensic test for obtaining expert opinion. In the

application, the petitioner had taken a specific stand in paragraph-2,

which is relevant to be reproduced:-

"2. That the accused most respectfully submits that since the beginning of the prosecution everywhere wherever finds, the accused has denied to have filed the contents of the disputed cheques and have stated as well as deposed to have issued blank undated cheques under the signature of the complainant during the year 2017 as "Security" against loan amount of Rs.4,52000/- (Rupees Four Lakh Fifty Two Thousand) Only whereas the complainant during his cross- examination under para-3 have stated and deposed that the cheques in dispute has been issued by the accused on the date mentioned in the cheques itself and that the signatures of the accused on both the cheques, the amount mentioned in the cheques and the date mentioned in cheques are in different ink and filled by one person and has further deposed that the cheques

were signed by the accused in front of the complainant, which evidence if found fault with, the prosecution case would fail."

5. The learned C.J. (JD)-cum-JMFC, Sambalpur has dealt

with the contention raised by both the parties and vide impugned

order dated 05.04.2024 rejected the prayer of the petitioner inter

alia observing as under:-

"Perused the case record. This is a case filed U/s.-138 of N.I. Act by one Ashwini Kumar Mohapatra against the accused Shraddhanjali Mishra in the year 2018. The trial of this case is already completed. Then the case record was posted for argument. Now the petitioner/accused has come with this petition to send the specimen writings of the complainant and the accused and the disputed cheque to forensic science laboratory for opinion of handwriting expert. It is the contention of the petitioner that the accused has not filled the contents of the disputed cheque and has stated that she had issued blank undated cheque under her signature to the complainant as "security" against loan amount of Rs.4,50,000/- (Rupees four lakh fifty thousand only). The petitioner has undoubtedly disputed the amount and date mentioned in the cheque and has also submitted that different inks have been used while filling the contents of the cheque. It is further argued by the counsel for the accused that only a handwriting expert can shed light on the ageing of ink present on the cheque. On the other hand the counsel for the complainant vehemently objected to the petition by submitting that no fruitful purpose would be served if the cheque is sent to the FSL. The accused is deliberately playing dilatory tactics in order to linger the case.

In connection to the issues involved in the present petition this Court relies on the authority of the Hon'ble Apex Court in the case of Oriental bank of Commerce vs. Prabodh Kumar Tewari, reported in 2022 SCC Online SC 1089. The Hon'ble Apex Court relying on the judgment

of Bir Singh vs. Mukesh Kumar and Anss Rajashekar vs. Augustus Jeba Ananth of the Apex Court has held that:

18. For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability.

19. Undoubtedly, it would be open to the respondents to raise all other defenses which they may legitimately be entitled to otherwise raise in support of their plea that the cheque was not issued in pursuance of a pre-existing debt or outstanding liability.

Hence, as per the aforementioned authority of the Hon'ble Apex Court, in the case of Oriental bank of Commerce vs. Prabodh Kumar Tewari, I am of the opinion that no purpose would be served if the cheque is sent to the FSL for opinion of the handwriting expert. Hence, this petition is devoid of merit stands rejected. Put up on 11.04.2024 for argument."

The petitioner is aggrieved by the aforementioned

impugned order. Hence, filed the present petition.

6. The factual position as narrated above has been broadly

undisputed by the parties.

7. Mr. Ansari, learned counsel for the petitioner has relied

upon the judgment of the Hon'ble Supreme Court in the case of

Kalyani Baskar vrs. M.S. Sampoornam reported in (2007) 2 SCC

258. He has drawn my attention to paragraph-12 of the said

judgment, which reads thus:-

"12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 CrPC without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) CrPC refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The

appellant in this case requests for sending the cheque in question, for the opinion of the handwriting expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable."

Mr. Ansari, learned counsel has also relied upon the

judgment of this Court in the case of (M/s.) Survika Distributors

Pvt. Ltd. & another vrs. M/S. S.R. Retail Zone Pvt. Ltd. reported in

(2018) 70 OCR-51. The relevant part of the said judgment reads as

under:-

"Considering the submissions made by the learned counsel for the petitioners, one thing is clear that the accused persons are not disputing that the signatures which are appearing in the cheques Exts.3, 4 and 5 to be that of accused Dibyendu Pattnaik but they are disputing that the other entries in the cheques like date and amount etc. are not that of either accused Dibyendu Pattnaik or of any other accused and those were filled up by the complainant who is stated to be in possession of blank signed cheques or by somebody at the instance of the complainant.

In view of such specific stand taken by the accused persons during trial, I am of the humble view that in the interest of justice, it is necessary that there should have been a direction for examination of the other entries appearing in the cheques Exts. 3, 4 and 5 apart from the admitted signatures with the admitted handwritings of the accused persons as well as the complainant in order to ascertain the truth. After obtaining the handwriting expert opinion, the learned Magistrate could have assessed the oral evidence as

well as documentary evidence coupled with handwriting expert's opinion in order to find out the truth. Whether the case of the complainant that he was handed over signed cheques Exts. 3, 4 and 5 in a completed form is correct or the plea taken by the accused persons that those were blank signed cheques given to the complainant on good faith which have been misutilized by the complainant is correct could have been judged thereafter. Law is well settled that the report of handwriting expert is not the conclusive proof of evidence and it is after all opinion evidence and it should be supported by reasons and the Court has to evaluate the same like any other evidence. It is for the Court to judge whether the opinion has been correctly reached on the data available or not. By not entertaining the prayer of the accused persons in sending the Exts. 3 to 5, the learned Magistrate has prevented the accused persons in proving their defence plea in a better manner."

8. By relying upon the aforementioned judgments, Mr.

Ansari submitted that the complainant/opposite party has misused

the cheque being issued towards "Security". Even in the cases

where presumption raised either under Section 118(a) or 139 of the

N.I. Act, opportunity should have been afforded to the accused-

petitioner for adducing evidence in rebuttal thereof. The law places

a burden on the accused, therefore, he should have been given an

opportunity to discharge the burden. Mr. Ansari, learned counsel

also submits that in the fact scenario of the present case, there was

no escape under law for the learned trial court to allow the

application moved by the petitioner. However, surprisingly the

application is turned down by ignoring all the judgments cited by

him before the learned trial court.

9. On contrary, Mr. Pradhan, learned counsel for the opposite

party has opposed the prayer of the petitioner. He has relied upon

the judgment of the Hon'ble Supreme Court in the case of Oriental

Bank of Commerce vrs. Prabodh Kumar Tewari passed in

Criminal appeal No.1260 of 2022. He has relied upon paragraph-

17 of the said judgment, which reads as under:-

"17. For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by the drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability."

10. Mr. Pradhan, learned counsel contended that the learned

trial Court has rightly gone by the law laid down by the Hon'ble

Supreme Court in Oriental Bank (supra). He also contended that

once the accused-petitioner has admitted his signature in the

cheque, there is no question of sending it to the hand writing

expert/FSL.

11. I have taken into consideration the entire material placed

before me meticulously and also gone through the judgments cited

by both the parties in extenso. While dealing with the issue in lis, it

would be apt to take into consideration the provisions of Section 73

of the Indian Evidence Act, 1872, which reads as under:-

"73. Comparison of signature, writing or seal with others admitted or proved- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."

12. It is always not necessary that in every such case, the

opinion of the expert is necessitated for determining the issue. It is

open for the learned trial Court to resort to the procedure

contemplated under the Indian Evidence Act to evaluate the

evidence relating to the issuance of the cheque. The Hon'ble

Supreme Court in Criminal Appeal No.423 of 2022 in Manorama

Nail vrs. The State of Odisha & Anr. has precisely noticed the

same aspect and observed as under:-

"It is pointed out that the opinion of the handwriting expert was filed for the first time before the High Court and was not available with the Trial Court at the time when cognizance was taken. That apart, the signatures

and handwriting of the person can also be proved under Sections 45, 47 and 73 of the Indian Evidence Act, 1872. Therefore, opinion of the handwriting expert is not the only way or mode of providing the signature and handwriting of a person.

Even the High Court of Kerala in one of the judgment in

OP (CRL.) No.533 of 2021 in the case of Tomy T.J., vrs. State of

Kerala and another has held as under:-

"14. In Murari Lal v. State of M.P. [(1980) 1 SCC 704 : 1980 SCC (Cri) 330] the Apex Court indicated the circumstances in which the Court may itself compare disputed and admitted writings thus:-

"12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill-able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence."

13. Taking into consideration the entire conspectus of the facts

and law relating to the issue in subject, although I am not inclined

to interfere with the impugned order dated 05.04.2024 passed by the

learned CJ (JD)-cum-J.M.F.C., Sambalpur in I.C.C. Case No.270 of

2018 but suffice it to say that it is open for the petitioner to make a

request for comparison of the admitted or proved writings with the

disputed writings appearing in the cheque. The learned trial Court

shall invoke Section 73 of the Indian Evidence Act and draw a

comparison at the time of disposal of the complaint case.

14. With this observation, the CRLMC is partly allowed.

(S.S. Mishra) Judge Swarna

Designation: Senior Stenographer