Holding

The right to compel production or expert examination under Section 243(2) CrPC is not absolute and cannot be used for vexation or delay; the second application is not maintainable, though the court may grant the accused a reasonable opportunity to obtain expert analysis at his own cost.

Summary

The respondent filed a complaint under Section 138 of the Negotiable Instruments Act alleging that the appellant had issued a pronote and a cheque which later bounced. The appellant claimed the documents were forged and applied to a magistrate for their examination by a handwriting expert; the application was dismissed. He filed a second, similar application which was also dismissed, and both dismissals were upheld by the High Court. The Supreme Court examined whether the accused’s right under Section 243(2) of the CrPC to compel production of documents or expert assistance is absolute, and whether the magistrate was justified in refusing the applications. It held that the right is not absolute and cannot be used to delay proceedings; the second application was not maintainable, but the court may allow the accused to examine the documents through an expert at his own cost within six weeks. Consequently, the appeals were dismissed.

Issues considered

The scope and limits of the accused’s right under Section 243(2) CrPC to compel production of documents or expert examination.
Whether the magistrate was justified in dismissing the appellant’s applications for handwriting expert analysis.
Whether a second application for the same relief is maintainable.
Whether the accused is entitled to be permitted to examine disputed documents through an expert at his own expense.

Legislation cited

Code of Criminal Procedure, 1973s. 243(2)
Constitution of Indias. Article 21
Indian Evidence Act, 1872s. 45, s. 73
Negotiable Instruments Act, 1881s. 138

Subjects

fair trialright to defenceSection 243 CrPChandwriting expertSection 138 NI Actdelay of justiceArticle 21evidence law

Judgment

[2009] 11 S.C.R. 676
..i.-
A G. SOMESHWAR RAO
v.
SAMINENI NAGESHWAR RAO & ANR. ETC.
(Criminal Appeal No. 1353 of· 2009)

JULY 29, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
~·

.,,
Code of Criminal Procedure, 1973 - s.243(2) -
Complaint of dishonour of cheque - Accused disputing the
c document, seeking its examination by handwnting expert -
Denied by courts below - On appeal, held.· accused, though
entitled to fair trial and entitled to lead evidence to defend his
case, such right is not absolute - Such right cannot be taken
recourse to for delaying the proceedings - On facts, conduct
D of the accused shows that he intended to delay the disposal
of the matter- Opportunity granted to the accused to examine ). -
an expert at his own cost - Evidence Act, 1872 - ss. 45 and
73 - Constitution of India, 1950 - Article 21 - Negotiable
Instruments Act. 1881 - s. 138.
E
Respondent No. 1 field a complaint petition against
the appellant uls. 1348 of Negotiable Instruments Act,
1881, alleging that the appellant had executed a pronote
and had also issued a cheque which was dishonored on
presentation. Appellant contended that the cheque as
F well as the pronote were fabricated. He, therefore, filed
..
an application for examination of the cheque and the
pronote by a handwriting expert. The Application was
dismissed. Revision petition against the order was
dismissed by High Court. Appellant, thereafter, filed
G another application for the same purpose, which was
dismissed by trial court. Revision against the same was >- ,,
also dismissed. Hence the present appeals.

Dismissing the appeals, the Court
H 676
G. SOMESHWAR RAO v. SAMINENI NAGESHVvAR -577
RAO & ANR. ETC.
-).
HELD: 1. An accused is entitled to a fair trial which A
is a part of his fundamental right as guaranteed under
Article 21 of the Constitution of India. The concept,
however, cannot be put to a straight jacket formula. A
court of law will have to consider each application filed
by an accused praying for comparison of his signature B
on a disputed document with his admitted signature on
its own merits. No hard and fast rule can be laid down
therefor. Section 243 Cr.P.C provides for grant of an
-r ..
·-
opportunity to the defondant to lead evidence in his
• defence as also to file a written statement. [Paras 9 and c
1O] [682-A-D]

2. The right of an accused under sub-section (2) of
Section 243 Cr.P.C. is, thus, not an absolute one. He
cannot take recourse thereto for the purpose of delaying
the proceedings. An application filed by an accused must D

---""' be for subserving the cause of justice and not for
subverting the same. [Para 10] [683-A-B]

3. Appellant had filed two successive applications;
the second application was, thus, not maintainable. This E
~ 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, the court shall grant him
reasonable opportunity. Even now, the court will be
.., entitled to exercise its jurisdiction, if it so thinks fit and F
proper in terms of Section 73 of the Evidence Act. The
interest of justice wouii:f 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
Judge would grant him an opportunity to examine the G
disputed documents, submit a report and examine
himself as a witness in the ~ase preferably on the same
"' _.._
date. [Paras 13 and 14] [684-E-H; 685-A-B]
I

Renu Devi Kedia v. Seetha Devi 2004(6) ALT 429;
... H
678 SUPREME COURT REPORTS (2009] 11 S.C.R.

A Kalyani Baskar(Mrs.) v. M.S. Sampoomam (Mrs.) (2007) 2
SCC 258 and T. Nagappa v. Y.R. Muralidhar (2008) 5 SCC
633, referred to.

Case Law Reference:
B 2004 '"'
\ . ALT 429 referred to Para 5
c2001) 2 sec 258 referred fo Para 8
c2ooa) s sec 633 referred to Para 8

c CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal •
No. 1353 of 2009.

From the Judgment & Order dated 22.8.2007 of the High
Court of Judicature of Andhra Pradesh at Hyderabad in
Criminal Revision No. 1039 of 2007.
D
WITH

Criminal Appeal No. 1354 of 2009.

C. Mukund, Shashank Sharma, Vandana Anand, Bijoy
E Kumar Jain for the Appellants.

D. Bharathi Reddy for the Respondents.

The Judgment of the Court was delivered by
F S.B. SINHA, J. 1. Leave granted.

2. Challenge in this appeal, which arises out of
S.L.P.(Crl.)No.6278 of 2007 is to a judgment and order dated
22nd August 2007 passed by a learned Single Judge of the
G High Court of Andhra Pradesh whereby and whereunder a
revision application, filed by the appellant herein, arising out of
a judgment and order dated 07th April 2007 passed by the 1st
Additional Judicial Magistrate of First Class, Khammam

H
dismissing an application filed by the appellant for sending the
...
G. SOMESHWAR RAO v. SAMINENI NAGE.SHWAR 679
RAO & ANR. ETC. [S.B. SINHA, J.]
. -,. disputed pronote and the cheque for examination of a A
handwriting expert, was dismissed.

3. According to the appellant, an agreement to sell was
entered into in terms whereof one Sangi Venkanna and Y.
Satyanarayana, brother-in-law of the 1st respondent agreed to
B
purchase the appellant's share of the suit land for a total
consideration of Rs.12,00,000/- (Rupees twelve lacs) and out
. of the said amount, a sum of Rs.4,00,000/- (Rupees four lacs)
-1 was paid by way of advance. According to him, as the said
agreement could not be given into effect to, the same stood
cancelled vide another agreement dated 22nd August 2004
c
and the disputes stood amicably settled.

4. However, first respondent herein filed a complaint
petition, being C.C.No.77 of 2005, against the appellant for
commission of an offence under Section 138 of the Negotiable D
..... Instruments Act, 1881 on the premise that the appellant had
executed one pronote on 21st October 2002 for a sum of
Rs.5,00,000/- (Rupees five lacs). It was also alleged that he also
issued a cheque bearing no.400707 on 25th October 2004 for
another sum of Rs.6,00,000/- (Rupees six lacs) purportedly in E
favour of the 1st respondent drawn on State Bank of
Hyderabad, Suryapet Branch. The said cheque, according to
the said respondent, when presented before the bank for having
been honoured, was returned with the remarks 'Insufficient
Funds'.
• F
5. Appellant contended that the said pronote as also the
cheque were forged and fabricated. He also denied and
disputed execution of the said cheque. He, therefore, filed an
application for examination of the said pronote as also the
cheque, which were marked as Exs.P-1 and P-2 respectively, G
by a handwriting expert.
r -4
The said application, being Crl.M.P.No.757 of 200/ in C.C.
No.77 of 2005, however, was dismissed by an order dated 07th
April 2007 by the learned 1st Addi. Judicial Magistrate; relying H
680 SUPREME COURT REPORTS [2009] 11 S.C.R.

A on a decision of the High Court of Andhra Pradesh being Renu
Devi Kedia v. Seetha Devi reported in 2004(6) ALT 429 and
another decision reported in 2005(1) ALO (Crl.) 161 (AP),
stating :

"12. In view of the decision of our own Hon'ble Court
B
referred to above, there is every possibility for a party to
disguise his signatures and as the transaction under Ex.P1
does not relate to Exs.P-1 and P-2, the same cannot be
taken as an admitted document for comparison of the 't
signatures of the petitioner I accused. Therefore, I see no
c useful purpose will be served in sending Exs.P-1 and P-2
to the Expert for comparison. Hence, I do not find any valid
reason to allow this petition and accordingly, the petition
is dismissed."

D 6. The High Court, as noticed hereinbefore, by reason of
the impugned order dated 22nd August 2007, dismissed the
revision application filed against the said order being
Crl.M.P.No.757 of 2007, stating:

"On a perusal of the evidence of P.W.1, it is clear that
E
P.W.1 has specifically stated that Ex.P1-pronote and
Ex.P2-cheque were executed by the accused. That
evidence has not been challenged in the cross-
examination, except putting a suggestion that one l
Venkanna put his signature in the name of the accused.
F There is no specific denial that the accused did not sign
on Exs.P1 and P2. Therefore, the petition under Section
45 of the Indian Evidence Act is purported to have been
filed only to drag on the matter. The calendar case is of
the year 2005 and in the absence of any specific denial
G with regard to the execution of Ex.P1-pronote and issuance
of Ex.P2-cheque, the question of sending those
documents to the expert for comparison with the admitted
signatures does not arise. The trial Court has rightly
dismissed the said petition, and therefore, I am of the view
H that the order under challenge does not suffer from any
G SOMESHWAR RAO v. SAMINENI NAGESHWAR 681
RAO & ANR. ETC. [S.B. SINHA, J.]

-). legal infirmities so as to call for interference by this Court, A
and as such, the present Criminal Revision Case is liable
to be dismissed."

Appellant, however, on or about 20th June 2007 filed
another application, being Crl.M.P. No.1325 of 2007 in C.C.
B
No.77 of 2005, for the same purpose which, by reason of an
order dated 04th July 2007, was dismissed by the said learned
Magistrate, inter alia, holding :
--1
"As rightly pointed out by the learned counsel for the
respondenUcomplainant, this court dismissed the petition c
in Crl.M.P.No.757 of 2007 by its order dated 7-4-2007 by
turning down the request of the petitioner to send Ex.01
documents to the Handwriting Expert by holding that Ex.01
does not relate to Exs.P1 & P2 and, therefore, the same
cannot be taken as an admitted documents for comparison D
of the signatures of the petitioner."
- -4
7. Revision application filed by the appellant thereagainst
has also been dismissed by the High Court by a separate order
passed on the same date, viz., 22nd August 2007 in
E
Crl.Revision Case No.995 of 2007 which has also been
challenged by the appellant by filing a separate Special Leave
Petition being S.L.P.(Crl.)No.6838 of 2007. ·

8. Mr. C. Mukund, learned counsel appearing on behalf of
the appellant would submit that having regard to the fact that F
" the accused is entitled to a fair trial, his application for
examination by an expert within the meaning of Section 45 of
the Indian Evidence Act, 1872 for the purpose of establishing
that a document, whereupon the prosecution rests its case,
being not genuine, the court was under a constitutional G
obligation to ensure that he is permitted to take all defences.
r _. Strong reliance in this behalf has been placed on
judgments of this Court in the. case of Kalyani Baskar (Mrs.)
V. M.S. Sampoornam (Mrs.) (2007) 2 sec 258 and in the
H
682 SUPREME COURT REPORTS [2009) 11 S.C.R.

A case of T. Nagappa v. Y.R. Muralidhar (2008) 5 SCC 62

We may place on record that in spite of service no one
has entered appearance on behalf of respondent no.1.

9. Indisputably, an accused is entitled to a fair trial which
8 is a part of his fundamental right as guaranteed under Article
21 of the Constitution of India. The concept, however, cannot
be put to a straight jacket formula. A court of law will have to
consider each application filed by an accused praying for
~
comparison of his signature on a disputed document with his
c admitted signature on its own merits. No hard and fast rule can
be laid down therefor.

10. Section 243 of the Code of Criminal Procedure, 1973
provides for grant of an opportunitY to the defendant to lead
D evidence in his defence as also to file a written statement, sub-
section (2) whereof reads as under :
.._ -
"243. Evidence for defence.- (1) .........

(2) If the accused, after he had entered upon his defence,
E applies to the Magistrate to issue any process for
compelling the attendance of any witness for the purpose
of examination or cross-examination, or the production of
any document or other thing, the Magistrate shall issue
such process unless he considers that such application
F should be refused on the ground that it is made for the
purpose of vexation or delay or for defeating the ends of
..
justice and such ground shall be recorded by him in writing:

Provided that, when the accused has cross-
examined or had the opportunity of cross-examining any
G witness before entering on his defence, the attendance of
such witness shall not be compelled under this section.
unless the Magistrate is satisfied that it is necessary for ~ -~
the ends of justice.

H (3) ......... "
G. SOMESHWAR RAO v. SAMINENI NAGESHWAR 683
RAO & ANR. ETC. [S.B. SINHA, J.]

>- The right of an accused under sub-section (2) of Section A
243 of the Evidence Act is, thus, not an absolute one. He cannot
take recourse thereto for the purpose of delaying the
proceedings. An application filed by an accused must be for .
subserving the cause of justice and not for subverting the same.
B
11. In the case of Ka/yani Baskar (supra), this Court held
as under:

"12. Section 243(2) is clear that a Magistrate holding an
-1
inquiry under CrPC in respect of an offence triable by him
does not exceed his powers under Section 243(2) if, in the c
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 D
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 E
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 appellan·t of an opportunity of rebutting it. The
appellant cannot be convicted without an opportunity being F
'#.
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
G
essential that rules or procedure designed to ensure justice
should be scrupulously followed, and the courts should be
,- 4 jealous in seeing that there is no breach of them ..... "

The said decision h_as been followed by this Court in the
case of T Nagappa (supra) opining : H
684 SUPREME COURT REPORTS [2009) 11 S.C.R.

A "8. An accused has a right to fair trial. He has a right to ..( ~

defend himself as a part of his human as also fundamental
right as enshrined under Article 21 of the Constitution of
India. The right to defend oneself and for that purpose to
adduce evidence is recognized by Parliament in terms of
B sub-section (2) of Section 243 of the Code of Criminal
Procedure, ..... "

12. In this case, the pronote was issued in the year 2002.
The cheque was issued in the year 2004. The complaint petition 't"
was filed in the year 2004. The complainant examined his
c 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
D 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 07th April 2007. Immediately
thereafter another application was filed on 20th June 2007 which
was not maintainable as allowing the same would have
E 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
cc·nparison was changed.

F 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
G
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
H would be subserved if an opportunity is granted to the appellant
G. SOMESHWAR RAO v. SAMINENI NAGESHWAR 685
RAO & ANR. ETC. [S.B. SINHA, J.]
- ..>. to examine an expert at his own costs. If he requisitions the A.
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. B

15. With the aforementioned observations and directions,
these appeals are dismissed.

K.K.T. Appeals dismissed.