In this category two issues have been picked up, viz., scope of Section 73 of the Indian Evidence Act and also a similar connected issue relating to reference of document to Forensic Science Laboratory for expert opinion vis-à-vis proceedings under Section 138 of the Negotiable Instruments Act, 1881 on dishonor of cheque. The matters taken up for discussion in this category on the above issue are the Supreme Court judgments, namely, State (Delhi Administration) vs Pali Ram, decided on 26 September, 1978 (AIR 1979 SC 14) and T. Nagappa vs Y.R. Muralidhar, decided on 24 April, 2008 [(2008) 5 SCC 633].
In the matter namely State (Delhi Administration) vs. Pali Ram, the question raised was in regard to scope of powers of Court under Section 73 of the Evidence Act. The question eventually before the Court was, "Whether a Magistrate in the course of an enquiry or trial on being moved by the prosecution, is competent under Section 73, Evidence Act, to direct the accused person to give his specimen handwriting so that the same may be sent along with the disputed writing to the Government Expert of Questioned Documents for examination, "with a view to have the necessary comparison"?
While discussing the scope of Section 73, a comparison was also made with position in English Law and it was observed that the Indian Evidence Act recognises two direct methods of proving the handwriting of a person: (1) By an admission of the person who wrote it and (2) By the evidence of some witness who saw it written. These are the best methods of proof.
Besides, the above, there are three other modes of proof by opinion namely (i) By the evidence of a handwriting expert. (Section 45); (ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (Section 47); and (iii) Opinion formed by the Court on comparison made by itself. (Section 73)
In all the three modes of proof, there is process of comparison involved. In mode (i), the comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned document. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned. In the case of (iii), the comparison is made by the Court with the sample writing or exemplar obtained by it from the person concerned.
A sample writing taken by the Court under the second paragraph of Section 73, is, in substance and reality, the same thing as "admitted writing" within the purview of the first paragraph of Section 73, also. The first paragraph of Section 73 provides for comparison of signature, writing, etc. purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not specifically say by whom such comparison may be made.
Section 73 has to be read as a whole, in the light of Section 45 and accordingly, by doing so, a Court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Session, does not exceed its powers under Section 73 if, in the interests of justice, it directs an accused person appearing before it, to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved by the Court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the Court before which he is ultimately put up for trial, to compare the disputed writing with his (accused's) admitted writing, and to reach its own conclusion with the assistance of the expert.
Where proof of handwriting is in nature comparison, there exists a duty on the Court to use its own eyes and mind to compare, the admitted writing with the disputed one to verify and reach its own conclusion and here it will not be wrong if Court directs an accused person present before it to write down a sample writing as such direction is for the purpose of enabling the Court to compare the writing so written with the writing alleged to have been written by such person, within the contemplation of Section 73.
The matter, viz., T. Nagappa vs Y.R. Muralidhar, was in relation to application filed under Section 243 of the Code of Criminal Procedure, 1973 in a proceedings filed under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) i.e. offence relating to dishonour of Cheque. The Cheque in question was sought to be referred to Forensic Science Laboratory for determining the age of signature on the ground that the cheque issued was obtained long back towards security for a hand loan, already paid, but instead of returning the cheque, the same was misused by entering huge amount.
The Court observed that when a contention of misuse of cheque is raised, even if there is a presumption under Section 118(a) or 139 of the NI Act, an opportunity must be granted to the accused for adducing evidence in its rebuttal. An accused has a right to fair trial and accordingly also has a right to defend himself as a part of his human as also fundamental right provided under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized as per Section 243(2) of the Code of Criminal Procedure.
What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. The court being the master of the proceedings must determine as to whether the application filed by the accused is bona fide or not or 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. The accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.
In this regard the legal position was settled in the case namely, Kalyani Baskar vs. M.S. Sampoornam [(2007) 2 SCC 258] holding that as per Section 243(2) 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 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 Court had further held that adducing evidence in support of the defence is a valuable right and denial thereof means denial of fair trial. It was held as 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.