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
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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
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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
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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
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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
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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
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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
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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
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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
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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.”
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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
Signature Not Verified
Digitally Signed
Signed by: SWARNAPRAVA DASH
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 13-Mar-2025 16:46:00
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