Nabakishore Barik vs Brahmahari Shankar Dash .... Opposite ...
2025 Latest Caselaw 8658 Ori

Orissa High Court

Nabakishore Barik vs Brahmahari Shankar Dash .... Opposite ... on 24 September, 2025

Author: Chittaranjan Dash

Bench: Chittaranjan Dash

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                CRLMC No. 4711 of 2023

     Nabakishore Barik                      ....            Petitioner
                                   Mr. B.N. Mahapatra, Advocate

                                -versus-
     Brahmahari Shankar Dash                ....      Opposite Party

                  CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH

                 Date of Judgment: 24.09.2025

Chittaranjan Dash, J.

1. By means of this application, the Petitioner seeks to set aside the order dated 29.08.2023 passed by the learned J.M.F.C., Jajpur Road in 1CC Case No.76 of 2022.

2. The background facts of the case are that the Petitioner had taken a friendly loan of Rs.3,50,000/- (Rupees Three Lakhs Fifty Thousand only) from the Opposite Party, with an assurance to return the same within two months. After completion of the said period, when the Opposite Party demanded repayment of the borrowed amount, the accused, instead of paying the money, issued a cheque bearing No.000006 dated 28.10.2021 for Rs.3,50,000/- (Rupees Three Lakhs Fifty Thousand only), drawn on Bandhan Bank, Jajpur Town Branch, in favour of the Opposite Party. The Opposite

Party presented the said cheque with his banker, i.e., State Bank of India, Jajpur Road Branch, on 12.11.2021 for collection of the amount. However, the cheque was dishonoured with the endorsement "Funds Insufficient." Consequently, the Opposite Party filed a complaint before the learned J.M.F.C., Jajpur Road, under Section 138 of the N.I. Act. During the pendency of the trial, the Petitioner filed an application under Section 73 of the Evidence Act, 1872, praying for sending the cheque to a handwriting expert for examination, as the Petitioner disputed the signature appearing on the cheque as being forged and fabricated. The Opposite Party filed an objection to the said application, whereupon the learned court, instead of disposing of the petition, proceeded with the trial. Eventually, the petition was considered, and by order dated 29.08.2023, the learned court declined to send the cheque for examination by a handwriting expert. Being aggrieved by the aforesaid order, the Petitioner has moved this Court, inter alia, on the ground that he has a right to a fair trial and to raise objection regarding the disputed signature, and that unless the same is examined with the assistance of an expert opinion, he would be seriously prejudiced. The learned counsel also relied upon the decision in the matter of M/s. Survika Distributors Pvt. Ltd. & another vs. S.R. Retail Zone Pvt. Ltd. reported in (2018) 70 OCR 51, passed by the Co-ordinate Bench of this court.

3. Perused the impugned order dated 29.08.2023, the learned court while rejecting the prayer of the Petitioner held as follows:-

"This order arises out petition filed U/S 73 of Indian Evidence Act. On 17.08.23 with a prayer to send Exhibit number P-1/P.W.1 for Handwriting Expert opinion on the grounds stated therein. Copy served. Heard on the petition.

Perused the case record, petition and other connected documents. It is found that the case is at the stage of recording of evidence. The complainant P.W.1 had already been examined and exhibit i.e. the cheque was marked as Ext.P-1/P.W.1 without any objection from the opposite side. The signatures of the accused which were marked as Ext.P-1¹ and Ext.P-12 were marked without objection. It was found that the cheque was returned vide cheque return memo marked as Ext.P-2 with endorsement of "Funds Insufficient" and not due to signature mis- match on the cheque. Due to these reasons, this Court does not feel it proper to allow the petition, hence it is rejected. "

4. As revealed from the case record of the learned court below, the prayer has been made by the Petitioner under Section 73 of the Evidence Act, 1872. The said provision of the Evidence Act empowers the Court to compare disputed handwriting with writings made in its presence, or with writings admitted or proved to be that of the concerned person. The Court may apply its own observation to the admitted or proved writings and compare them with the disputed one. Such comparison is based on an analysis of the characteristics found in the admitted or proved writings and the presence of the same characteristics, in large measure, in

the disputed writings. Even where there is an expert's opinion on handwriting, it is subject to the Court's scrutiny. The expert's opinion is not conclusive. The Court must independently satisfy itself whether it can safely be held that the two writings are of the same person. To this extent, the Court may play the role of an expert. The Court can accept the disputed signature as that of the witness if, upon its own observation, it is satisfied that it is safe to do so. It is not necessary to have the admitted signatures of the witness compared with the signatures in the disputed counterfoils of the aforesaid paper by an expert. The Court can scrutinise the characteristics of the signatures, and if it finds that the disputed signatures share the same characteristics, in large measure, with the admitted signatures, it may safely conclude that both are of the same person.

However, the provision of the second clause of Section 73 of the Evidence Act limits the power of the court to directing a person present in court to write any words or figures only where the court itself is of the view that it is necessary for its own purposes, to take such writings in order to compare the words or figures so written with any words or figures alleged to have been written by such persons.

Section 73 of the Evidence Act, cannot be construed as an instrument or a devise to be used for the advancement of any party, either the prosecution or the accused. Section 73 is one of these sections where the large powers are given to the

court with the obvious object of enabling the court to find out the truth and to do complete justice between the parties. Nonetheless, it is an enabling provision for the court making an inquiry in determining and issued to form its opinion by comparison of the words or figures as the case may be, in a given case.

In respect of the proof of handwriting or signature courts have two other modes provided under Sections 45 and 47 of the Evidence Act. Under Sections 45 and 47 of the Evidence Act the court has to form an opinion on the opinion of others. Whereas, under Section 73 under of the Indian Evidence Act the court by its own comparison of writings has to form its opinion.

5. From the impugned order, it is revealed that the cheque in question has already been proved and marked as Exhibit Ext. P-1/P.W.1 without any objection, including the signature of the Petitioner appearing therein under Ext. P-11 and Ext.P- 12, which was also admitted without objection. Consequently, there was nothing before the Court to warrant a comparison of the signature allegedly in dispute. In such circumstances, the Petitioner ought to have moved an application under Section 45 of the Evidence Act, which reads as follows:-

45. Opinions of experts.--When the Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or

finger impressions are relevant facts. Such persons are called experts.

6. In view of the same, technically, the Petitioner has not moved a proper application before the learned court below for redressal of his grievance.

7. The Hon'ble Supreme Court, in the matter of G. Someshwar Rao vs. Samineni Nageshwar Rao & Anr., reported in 2009 (14) SCC 677, has held as follows:-

"12. In this case, the pronote was issued in the year 2002. The cheque was issued in the year 2004. The complaint petition was filed in the year 2004. The complainant examined his witnesses in between the period September 2006 and February 2007. Appellant examined his own witnesses. They had been cross-examined. The learned Magistrate noticed that even the legal notice served upon him was not accepted by the appellant. The court, in the aforementioned situation, held that the gap between execution of two signatures is such where some variance is possible. Rightly or wrongly, his application was dismissed by an order dated 07 April 2007. Immediately thereafter another application was filed on 20 June 2007 which was not maintainable as allowing the same would have amounted to recall of an order passed by the learned Magistrate himself being impermissible in law. In the latter application only the document which was to be sent for comparison was changed.

13. Evidently, he had filed two successive applications; the second application was, thus, not maintainable. This itself goes to show that he intended to delay the disposal of the matter. He could have examined his own expert. He may still do so for which, we are sure, the court shall grant him reasonable opportunity. Even now, the court will be entitled to exercise its jurisdiction, if it so

thinks fit and proper in terms of Section 73 of the Indian Evidence Act.

14. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the interest of justice would be subserved if an opportunity is granted to the appellant to examine an expert at his own costs. If he requisitions the services of an expert, the learned Judge would grant him an opportunity to examine the disputed documents, submit a report and examine himself as a witness in the case preferably on the same date. Such a step, however, must be taken by the appellant within six weeks from date."

8. Coming back to the case in hand, on perusal of the order dated 17.08.2023, reveals that the evidence of the complainant has been closed now it is the turn of the Petitioner as accused to adduce his evidence. Keeping in view the discussions made above, the accused, in his defense has an equal right to examine witnesses on his behalf. Since it is the plea of the defense that the cheque in question has not been signed by him, the matter goes to the root of the case and refusal of the prayer of the Petitioner would render him defenseless. It would have been justified if the court would have allowed the prayer of the Petitioner directing him to examine the expert if any from the side of the defense to substantiate his plea.

9. As mandated by the Hon'ble Supreme Court, an opportunity be granted to the Petitioner to examine an expert at his own cost. If appropriate application is moved before the learned court for the services of an expert, the learned court

would grant opportunity to examine the disputed documents, and submit a report besides the expert's examination if any, as a witness and accordingly the impugned order dated 29.08.2023 is set aside. The court concerned is directed to consider the prayer of the Petitioner, upon a motion moved to that effect for examination of an expert at the cost of the Petitioner.

10. Keeping in view the age of the complaint case, the entire exercise shall be completed within a period of six weeks. Hence, ordered. The CRLMC is allowed.

(Chittaranjan Dash) Judge

Sarbani

Designation: Junior Stenographer

Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Sep-2025 19:05:29