Balram v. State Of U.P. Thru. Its Prin. Secy. Deptt. Of Home Lko. And Another

1. Power filed by Shri Dileep Kumar Tiwari, Advocate on behalf of opposite party no. 2 is taken on record.

2. Heard learned counsel for the applicant, learned AGA for the State, learned counsel for the opposite party no. 2 and perused the record.

3. The present application has been filed with the prayer to set aside/quash the entire criminal proceedings as well as order dated 06.09.2025 passed in Complaint Case No.1049 of 2023 under Section 138 of N.I. Act, pending before Additional Chief Judicial Magistrate, Court No.17, District Sultanpur.

4. It is the case of the applicant that opposite party no.2 filed a complaint under Section 138 N.I. Act making allegation that Rs.8,88,8000/- was taken on different dates through Bank of Baroda Branch Ranmusepur Haliapur and Rs.1,12,000 in cash on 28.06.2018. The applicant has been summoned in the aforesaid case as such he moved an application on 05.06.2024 for summoning the bank statements of the complainant but the application was rejected on 31.08.2024 and the trial court proceeded in the case. Thereafter, the applicant moved another application on 08.01.2025 stating therein that the signature of the applicant made on the cheque is forged therefore expert opinion may be called. The said application was rejected by the subordinate court.

5. It has been submitted by learned counsel for the applicant that the 2 A482 No. 8931 of 2025 statements of DW1-Sanjay Kumar indicating that he denied the signatures of the applicant on the cheque. It has been submitted that the trial court ought to have called for an expert opinion on the signatures of the applicant but the same was not done therefore, the applicant moved an application to get expert opinion of signature expert.

6. It has been submitted that though the trial is at the final stage, but in the interest of justice, the applicant has moved an application because he has not made signature on the cheque therefore, the expert opinion is required. There is no question of delay for the reason that in the statement of DW1, this fact has come on record that DW1 denied the signatures of the applicant. It is further submitted that the court below has rejected the application merely on the ground that the trial is at the fag end and delayed applications have been filed but the finding of the trial court is totally against the settled legal proposition that even at the final stage of trial, the court may summon any relevant document or relevant witness to prove the case.

7. On the other hand, learned AGA and learned counsel for opposite party no. 2 has submitted that at the fag end of trial, the application was given by the applicant. It has been submitted that once the proceedings under Section 313 Cr.P.C. has been completed and case is in final hearing stage, it is not open for the applicant to move an application thus court has rightly rejected the application.

8. Learned counsel for the applicant has further relied the judgment passed by the Hon'ble Supreme Court in the case reported in (2007) 2 SCC 258 Kalyani Baskar vs. M.S. Sampoornam. The relevant para no. 11 reads as under : "11. 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 3 A482 No. 8931 of 2025 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 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."

9. After going through the record, I find that in the statement of DW1-Sanjay Kumar, this fact has come that he denied the signatures of applicant on the cheque. This fact was before the court but the court did not adopt any recourse to know the truth. However, the application has been moved though at the belated stage, but the expert opinion is vital issue to be seen by trial court. It is required that the trial court should call for an expert opinion on the alleged signature made on the cheque.

10. In view of the above, the order dated 06.09.2025 is set aside. The application is disposed of with a direction to the subordinate court to take fresh decision and to adopt appropriate proceeding in the case within a month from the date of production of certified copy of this order. However, it is made clear that the applicant will not seek any unnecessary adjournment. October 28, 2025 Pks (Brij Raj Singh,J.) POOJA SETH High Court of Judicature at Allahabad, Lucknow Bench

1. Power filed by Shri Dileep Kumar Tiwari, Advocate on behalf of opposite party no. 2 is taken on record.

2. Heard learned counsel for the applicant, learned AGA for the State, learned counsel for the opposite party no. 2 and perused the record.

3. The present application has been filed with the prayer to set aside/quash the entire criminal proceedings as well as order dated 06.09.2025 passed in Complaint Case No.1049 of 2023 under Section 138 of N.I. Act, pending before Additional Chief Judicial Magistrate, Court No.17, District Sultanpur.

4. It is the case of the applicant that opposite party no.2 filed a complaint under Section 138 N.I. Act making allegation that Rs.8,88,8000/- was taken on different dates through Bank of Baroda Branch Ranmusepur Haliapur and Rs.1,12,000 in cash on 28.06.2018. The applicant has been summoned in the aforesaid case as such he moved an application on 05.06.2024 for summoning the bank statements of the complainant but the application was rejected on 31.08.2024 and the trial court proceeded in the case. Thereafter, the applicant moved another application on 08.01.2025 stating therein that the signature of the applicant made on the cheque is forged therefore expert opinion may be called. The said application was rejected by the subordinate court.

5. It has been submitted by learned counsel for the applicant that the 2 A482 No. 8931 of 2025 statements of DW1-Sanjay Kumar indicating that he denied the signatures of the applicant on the cheque. It has been submitted that the trial court ought to have called for an expert opinion on the signatures of the applicant but the same was not done therefore, the applicant moved an application to get expert opinion of signature expert.

6. It has been submitted that though the trial is at the final stage, but in the interest of justice, the applicant has moved an application because he has not made signature on the cheque therefore, the expert opinion is required. There is no question of delay for the reason that in the statement of DW1, this fact has come on record that DW1 denied the signatures of the applicant. It is further submitted that the court below has rejected the application merely on the ground that the trial is at the fag end and delayed applications have been filed but the finding of the trial court is totally against the settled legal proposition that even at the final stage of trial, the court may summon any relevant document or relevant witness to prove the case.

7. On the other hand, learned AGA and learned counsel for opposite party no. 2 has submitted that at the fag end of trial, the application was given by the applicant. It has been submitted that once the proceedings under Section 313 Cr.P.C. has been completed and case is in final hearing stage, it is not open for the applicant to move an application thus court has rightly rejected the application.

8. Learned counsel for the applicant has further relied the judgment passed by the Hon'ble Supreme Court in the case reported in (2007) 2 SCC 258 Kalyani Baskar vs. M.S. Sampoornam. The relevant para no. 11 reads as under : "11. 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 3 A482 No. 8931 of 2025 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 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."

9. After going through the record, I find that in the statement of DW1-Sanjay Kumar, this fact has come that he denied the signatures of applicant on the cheque. This fact was before the court but the court did not adopt any recourse to know the truth. However, the application has been moved though at the belated stage, but the expert opinion is vital issue to be seen by trial court. It is required that the trial court should call for an expert opinion on the alleged signature made on the cheque.

10. In view of the above, the order dated 06.09.2025 is set aside. The application is disposed of with a direction to the subordinate court to take fresh decision and to adopt appropriate proceeding in the case within a month from the date of production of certified copy of this order. However, it is made clear that the applicant will not seek any unnecessary adjournment. October 28, 2025 Pks (Brij Raj Singh,J.) POOJA SETH High Court of Judicature at Allahabad, Lucknow Bench