Orissa High Court: A petition under Section 482 of CrPC was decided by a Single Judge Bench comprising of S.K. Sahoo, J., wherein it was held that in order to provide a better opportunity to the accused to prove his case, it was necessary to send the documents concerned to handwriting expert for his opinion as prayed for by the petitioners-accused before the Trial Magistrate.
The matter related to Section 138 of Negotiable Instruments Act, 1881. The petitioners were prosecuted under the said section. They filed a petition before the Trial Magistrate to send the cheques in question to a hand writing expert. They denied the filling of details in the cheque although they did not deny their signatures on the same. Petitioners’ case was that they gave the blank cheques in question to the complainant to keep them in safe custody and use them as and when required and directed by the petitioners. However, the complainant misused the said cheques by filling up the blank entries in the cheques. In the said factual scenario as claimed by them, the petitioners prayed to send the cheques to a handwriting expert for comparison of the handwriting on the cheques with the one admitted by the petitioners. However, such prayer of the petitioners was rejected by the Trial Magistrate. Hence, the instant petition was filed.
The High Court perused the record and held that in view of the specific stand taken by the accused during trial, it was necessary in the interest of justice that there should have been a direction for examination of the entries other than the signatures appearing in the cheques with the admitted handwritings of the accused persons as well as the complainant in order to ascertain the truth. The Court also observed that the observation of the learned Magistrate that sending of the exhibits to the handwriting expert would in no way be helpful to the Court for proper adjudication of the dispute was a pre-determination of the issues involved.
Accordingly the order of the Trial Magistrate mentioned above was set aside and he was directed to send the cheques in question for opinion of handwriting expert and proceed with the case in accordance with law after receiving such report. [Survika Distributors (P) Ltd. v. S.R. Retail Zone (P) Ltd., 2018 SCC OnLine Ori 92, dated 05-02-2018]
Trail court ventured to convict the innocent accused in 138NI act which was very bad in law(as observed by Hon High court) because trail court rejected the following application without giving proper reasons laid down by laws 1) not allowing application under article 258 to stop proceedings since FIR pending with police investigation in same cheque theft and forgeing account holder signature signature 2)concerned bank manager application under 91crpc gave evedience that signature is not of account holder before trail court 3)Application under 91 crpc by concerned police station through jMFC rejected several times 4)Application under 45 evidence act also rejected by first appelent court, finaly High court observed the Blunders by lower courts and blindly convicted is big question and act as if lower courts are expert in all subjects by not sending disputed signature to FSL nor handing over the case to Goa police now back to trail court on direction to send disputed signature to FSL and handover the case to Bicholim Goa police the victim middle aged lady travelled more then 60 times to lower courts covering 1400 km each trip spent more then rs 350000/ all this because of adament attitude ,and I came to know that graft took place if law says no One is above law proper Investigation should and must done and the glorey of temple of justice to be maintained