T. NAGAPPAversusY.R. MURALIDHAR

                                  [2008] 6 S.C.R. 959


                                    T. NAGAPPA                             A
                                           v
                                 Y.R. MURALIDHAR
                          (Criminal Appeal No. 707 of 2008)

                                   APRIL 24, 2008
    --·                                                                    B
               (S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ )

                   Code of Criminal Procedure, 1973:
                    s. 243 - Evidence for defence - Case u/s 138 of
              Negotiable Instruments Act - Accused filing an application C
              seeking reference of cheque in question for examination of
              age of his signature by Forensic Laboratory raising a defence
              that cheque was misused - HELD: Right of accused to defend
              himself is recognized under Article 21 of the Constitution of
              India and s.243(2) of the Code- Court must determine whether D
              application is bona fide or not- On facts, application was bona
•     1
              fide - Orders of Judicial Magistrate and High Court rejecting
              application set aside - Constitution of India, 1950 -Article 21
              - Negotiable Instruments Act, 1881 - ss.20 and 138.
                   Negotiable Instruments Act, 1881:                       E

                   s. 20 - Inchoate instruments - Application of accused
              facing trial u/s 138, seeking the cheque to be referred to
              Forensic Laboratory to examine age of his signature -
              Rejected by Judicial Magistrate and High Court - HELO: u/s F
          ,   20 only a right has been created in the holder of the cheque
              subject to conditions mentioned therein - When a defence
              has been raised that complainant has misused the cheque,
              even in a case where presumption can be raised ulss 118(a)
              or 139 of the Act, an opportunity must be granted to accused
              to adduce evidence in rebuttal - Code of Criminal Procedure, G
               1973 - s.243.
          )        Practice and Procedure:
                   Non-mentioning or wrong mentioning of provision in
                                       959                                 H
   960       SUPREME COURT REPORTS                 (2008] 6 S.C.R.
                                                                     ;

A application - HELD: Would not be of any relevance if court
   has jurisdiction to pass the order- Code of Criminal Procedure,
   1973 - s.243.

       The appellant, in defence of the proceeding pending
  against him uls 138 of the Negotiable Instruments Act,
B 1881, filed an application before the Judicial Magistrate
  that the cheque in question be referred for examination
  by the Director of Forensic Science Laboratory in order
  to determine the age of his signature. The application was
  mentioned to have been filed u/s 293 instead of s.243 of
c the Code of Criminal Procedure, 1973. It was the case of
  the appellant that the respondent had obtained a signed
  cheque from him in the year 1999 as a security for a hand
  loan which was paid back, and thereafter the complainant
  misused the cheque. The Magistrate as also the High
D Court, relying on s.20 of the Act, rejected the application.
  Aggrieved, the applicant filed the instant appeal.                 •
         Allowing the appeal, the Court
       HELD: 1.1 An accused has a right to fair trial. He has
E 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 the
  Parliament in terms of sub-section (2) of Section 243 of
F the Code of Criminal Procedure, 1973. The court being
  the master of the proceedings must determine as to
  whether the application filed by the accused in terms of
  sub-section (2) of Section 243 of the Code is bona fide or
  not or whether thereby he intends to bring on record a
  relevant material. [para 7-8] [964-C, D; 965-A, B]
G
       1.2 In the instant case, the trial Court as also the High
  Court rejected the application only having regard to the
  provisions of Section 20 of the Negotiable Instruments
  Act, 1881. Under s.20 of the Act, only a prima facie right
H has been created in the holder of the cheque subject to
       T. NAGAPPA v. Y.R. MURALIDHAR [S.B. SINHA, J)            961

 ~
     the conditions mentioned therein, inter a/ia, that the A
     application filed by the applicant is bona fide. Thereby
     only a prima facie authority is granted, inter alia, to
     complete an incomplete negotiable instrument. When a
     defence has been raised that the complainant has
     misused the cheque, even in a case where a presumption B
--   can be raised under Section 118(a) or 139 of the Act, an
     opportunity must be granted to the accused for adducing
     evidence in rebuttal thereof. As the law places the burden
     on the accused, he must be given an opportunity to
     discharge it. In the instant case, the application filed by
     the appellant was bona fide. [para 6-7and 9) [963-D, H;
                                                                       c
     964-A, C; 965-E]
          2. Wrong mentioning of s.293 in place of s.243 of the
     Code would not matter much. It is a well settled principle
     of law that non-mentioning or wrong mentioning of D
     provision of law would not be of any relevance, if the
     Court had the requisite jurisdiction to pass an order.
     [para 11] [966-F, G]
          Kalyani Baskar (Mrs.) v. M. S. Sampoornam (Mrs.) (2007)
     ·2 sec 258 - relied on.                                           E
          CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
     No. 707 of 2008.
          From the final Judgment and Order dated 24.01.2007 of
     the High Court of Karnataka at Bangalore in Criminal Petition     F
     No. 108 of 2007.
 '
          S.B. Sanyal, Rajesh Mahale for the Appellant.
          Kiran Suri, S.J. Amith and Aparna Bhat for the Respondent.
          The Judgment of the Court was delivered by                   G
          S.B. SINHA, J. 1. Leave granted.
 )       2. Appellant is facing criminal charges before the Court of
     XV Additional Chief Metropolitan Magistrate, Bangalore in C.C.
     No.6835 of 2005 purported to be under Section 138 of the H
    962       SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A   Negotiable Instruments Act. He is said to have issued a cheque
    in favour of the respondent for a sum of Rs.7,50,BOO/- on
    8.10.2004 which on depositing in the Bank was allegedly
    returned unpaid. A complaint petition was filed by the respondent
    contending that the appellant had committed an offence under
B   Section 138 of the Negotiable Instruments Act.

        3. On or about 1.8.2006, the appellant filed an application
  under Section 243 of the Code of Criminal Procedure wrongly
  mentioned as Section 293 of the Code of Criminal Procedure,
  1973 for referring the cheque in question for examination by the
C Director of Forensic Science Laboratory for determining the
  age of his signature, contending that the respondent had
  obtained a signed cheque from him in the year 1999 as a security
  for a hand loan of Rs.50,000/- which had been paid back, but
  instead of returning the cheque, the same has been misused
D by entering a huge amount, which he did not owe to the appellant.
        4. By reason of an order dated 29.11.2006, the learned            +
    Magistrate dismissed the said application, opining :
          "Another main contention of the accused is that the cheque
E         was signed in the year 1999 and the writing appearing on
          the cheque has been filled up in the month of August,
          October and December 2004. The accused is at liberty to
          prove the said aspect by leading a cogent evidence. In my
          opinion, to prove the age of the writing on Exp-2 it is not
          necessary to send the exp-2 to the handwriting expert.
F         Thus, viewing from any angle, I do not find any good reason
          to refer the Exp-2 to the handwriting expert as prayed in
          the petition. Hence I answer the above said point in the
          negative."

G        5. A revision application filed thereagainst has also been
    dismissed by the High Court, stating :
          "It is the case of the accused/petitioner herein that the
          signed cheque of the accused is misused by the petitioner
          by filling contents therein after about 5 years. According to
H         the petitioner the cheque is of the year 1999 and the
     T NAGAPPA v. Y.R. MURALIDHAR [S.B. SINHA, J.]             963


        complainant has filled up the cheque by dating the said as    A
        9.10.2004. Hence to ascertain the age of the cheque, the
        application came to be filed by the petitioner which is
        rejected.
        The evidence of DW-2, the Assistant Manager of UCO
        Bank, Jayanagar Branch, Bangalore coupled with the B
        recital of Ex.D-11 i.e. the register pertaining to issuance
        of cheque book disclosed that the cheque containing Ex.P-
        2 (cheque leaf) was issued by the UCO Bank to the
        accused on 6.5.1997. If it is so, ascertaining the age of
        the cheque does not arise for consideration.                C
         In this matter, the signature on the cheque is admitted. If
         it is so the petitioner cannot dispute the contents of the
         cheque in view of the provisions of Section 20 of
         Negotiable Instruments Act. Hence there is no need to
         refer the cheque for Hand Writing Expert."                  D
          6. The learned Trial Judge, as also the High Court, in
    support of their respective orders, have relied upon Section 20
    of the Negotiable Instruments Act, which reads as under:
         "Section 20 - Inchoate stamped instruments.-Where E
         one person signs and delivers to another a paper stamped
         in accordance with the law relating to negotiable
         instruments then in force in 1 [India], and either wholly blank
         or having written thereon an incomplete negotiable
         instrument, he thereby gives prima facie authority to the F
         holder thereof to make or complete, as the case may be,
         upon it a negotiable instrument, for any amount specified
         therein and not exceeding the amount covered by the
         stamp. The person so signing shall be liable upon such
         instrument, in the capacity in which he signed the same, G
         to any holder in due course for such amount; provided that
         no person other than a holder in due course shall recover
>        from the person delivering the instrument anything in excess
         of the amount intended by him to be paid thereunder."
         By reason of the aforementioned provision only a right has   H
    964        SUPREME COURT REPORTS                   [2008] 6 S.C.R.


A   been created in the holder of the cheque subject to the conditions
    mentioned therein. Thereby only a prima facie authority is granted,
    inter alia, to complete an incomplete negotiable instrument.
          The provision has a rider, namely, no person other than a
    holder in due course shall recover from the person delivering
B   the instrument anything in excess of the amount intended by           •·
    him to be paid therein.
       7. When a contention has been raised that the complainant
  has misused the cheque, even in a case where a presumption
C can be raised under Section 118(a ) or 139 of the said Act, an
  opportunity must be granted to the accused for adducing
  evidence in rebuttal thereof. As the law places the burden on
  the accused, he must be given an opportunity to discharge it.
         An accused has a right to fair trial. He has a right to defend
0   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 the Parliament in terms of sub-section (2) of
    Section 243 of the Code of Criminal Procedure, which reads
    as under:
E
          "Section 243 - Evidence for defence.- (1) ...
          (2) If the accused, after he had entered upon his defence,
          applies to the Magistrate to issue any process for
          compelling the attendance of any witness for the purpose
F         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
          should be refused on the ground that it is made for the
          purpose of vexation or delay or for defeating the ends of
G         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 witness before
          entering on his defence, the attendance of such witness shall
          not be compelled under this section, unless the Magistrate
H         is satisfied that it is necessary for the ends of justice."
        T. NAGAPPA v. Y.R. MURALIDHAR [S.S. SINHA, J.]            965


             8. ,W!iat should be the nature of evidence is not a matter A
       wh(ch should be left only to the discretion of the Court. It is the
     . accused who knows how to prove his defence. It is true that the
       court being the master of the proceedings must determine as
       to whether the application filed by the accused in terms of sub-
       section (2) of Section 243 of the Code is bona fide or not or B
       whether thereby he intends to bring on record a relevant material.
"'
       But ordinarily an accused should be allowed to approach the
       court for obtaining its assistance with regard to summoning of
       witnesses etc. If permitted to do so, steps therefor, however,
       must be taken within a limited time. There cannot be any doubt c
       whatsoever that the accused should not be allowed to
        unnecessarily protracting the trial or summon witnesses whose
       evidence would not be at all relevant.
          9. The learned Trial Judge as also the High Court rejected
     the contention of the appellant only having regard to the D
     provisions of Section 20 of the Negotiable Instruments Act. The
     very fact that by reason thereof, only a prima facie right had
     been conferred upon the holder of the negotiable instrument
     and the same being subject to the conditions as noticed
     hereinbefore, we are of the opinion that the application filed by E
     the appellant was bona fide.·
            The issue now almost stands concluded by a decision of
      this Court in Ka/yani Baskar (Mrs.) v: MS. Sampoornam (Mrs.)
      [(2007) 2 sec 258] (in which one of us, LS. Panta, J., was a
      member) wherein it was held :                                     F
 )         "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
                                                                        G
           enabling the same to be compared by a handwriting expert
           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
                                                                        H
    966        SUPREME COURT REPORTS                      [2008] 6 S.C.R.


A         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
B         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
c         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."
D
         10. However, it is not necessary to have any expert opinion
    on the question other than the following :                                ..
          "Whether the writings appearing in the said cheque on the
          front page is written on the same day and time when the
E         said cheque was signed as "T.Nagappa" on the front page
          as well as on the reverse, or in other words, whether the
          age of the writing on Ex.P2 on the front page is the same
          as that of the signature "T.Nagappa" appearing on the
          front as well as on the reverse of the Cheque Ex.P2?"
F       11. Ms. Suri, however, pointed out that the application of
  the appellant being one under Section 293 of the Code of criminal
  Procedure was rightly rejected. It is now a well settled principle
  of law that non-mentioning or wrong mentioning of provision of
  law would not be of any relevance, if the Court had the requisite
G jurisdiction to pass an order.
         12. For the aforementioned reasons, the impugned
    judgment cannot be sustained. It is set aside accordingly with
    the aforementioned directions. Appeal is allowed.

H RP.                                                  Appeal allowed.