Denying FSL test of disputed cheque signature is denial of fair trial: Rajasthan HC

Jaipur: The Rajasthan High Court has held that refusing an accused the chance to get a disputed cheque signature examined by a forensic handwriting expert amounts to denial of fair trial. Justice Anoop Kumar Dhand passed the order on 13 April 2026 while allowing a criminal miscellaneous petition filed by Mahesh Tiwari of Gangapur City, Sawai Madhopur.

The Court quashed a Judicial Magistrate’s 2015 order that had refused to send a disputed cheque for Forensic Science Laboratory (FSL) examination. It directed the trial court to take the accused’s specimen signatures in open court. These, along with the cheque, will be sent to the FSL with a demi-official letter seeking an expeditious report.

The underlying dispute is a cheque-bounce case under Section 138 of the Negotiable Instruments Act, 1881 — the provision that makes dishonour of a cheque a criminal offence. Cheque No. 106880 dated 31 March 2011 was presented by the complainant, Kailash, before his bank and was dishonoured with the remark “funds insufficient”. Kailash served a statutory notice on Mahesh Tiwari seeking refund of the cheque amount. He then filed a complaint before the Judicial Magistrate (First Class), Gangapur City.

Tiwari’s defence from day one was that he had never issued the cheque and that the signature on it was not his. When the trial reached the stage of recording his evidence, he moved an application under Section 45 of the Indian Evidence Act, 1872. That provision lets a court take expert opinion on signatures and handwriting. Tiwari asked for FSL examination of the cheque signature by a handwriting expert.

The Magistrate rejected the application on 2 March 2015. Two reasons were given. Tiwari could instead examine a bank officer to prove his defence. And the application had been filed at the “fag end” of the trial. Tiwari carried the rejection in petition to the High Court under Section 482 of the CrPC.

Advocate Rahul Sharma, appearing for Mr. Rajneesh Gupta for the petitioner, argued that his client had consistently disputed the signature from the moment the statutory notice was received. Denying an FSL examination at the evidence stage would strip him of the only scientific means of rebutting the holder’s case. Counsel relied on the Supreme Court’s ruling in Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258.

Counsel for the complainant opposed the petition. He submitted that the Section 45 application was a delaying tactic filed at the fag end of the trial. The Magistrate’s order, he argued, did not suffer from any error warranting interference.

Justice Dhand framed the issue around Article 21 of the Constitution. Fair trial is a fundamental right under Article 21. It includes the right of the accused to adduce evidence in support of his defence. Section 243(2) of the CrPC gives statutory form to that right at the defence-evidence stage.

The bench then turned to Section 139 of the Negotiable Instruments Act. This provision creates a presumption in favour of the holder of a cheque — that the cheque was issued for the discharge of a debt or liability. In ordinary criminal cases, a person is presumed innocent until proven guilty. But Section 139 flips that presumption in cheque-bounce cases. It places the burden on the accused to prove the contrary. That presumption, the Court noted, is not absolute — it is rebuttable.

The consequence, the bench held, is that the right to fair trial becomes stronger in a Section 138 case, not weaker. Because the law already tilts the burden against the accused, it must also give him a real opportunity to discharge that burden. The Court observed that this right deserves to be “protected more strongly and emphatically than in ordinary criminal offences under the Penal Code, 1860”.

The Court then drew on the Supreme Court’s ruling in Kalyani Baskar. The apex court had held that a Magistrate does not exceed his powers under Section 243(2) CrPC by directing a document to be sent to a handwriting expert when the interests of justice require it. Quoting from the ruling, the bench recorded: “Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial.” In plain terms, if the signature is the central fact the accused disputes, a court cannot refuse the one scientific tool that can test it.

The bench rejected the Magistrate’s two reasons. The suggestion that Tiwari could instead examine a bank officer was inadequate — a bank official’s view is not a substitute for a forensic handwriting analysis. The “fag end of trial” ground was also unsustainable. Section 243(2) CrPC specifically contemplates an application after the prosecution’s evidence is closed. The only reason a court may refuse such a prayer is if it finds the object is vexation or deliberate delay.

The question of fact — whether the signature on the cheque is authentic — cannot, the Court said, be decided without the opinion of a handwriting expert. Sending the cheque to the FSL was therefore necessary for a fair adjudication.

The High Court quashed the Magistrate’s order dated 2 March 2015. The trial court was directed to take specimen signatures of the accused in open court and send them, together with the cheque, to the FSL for scientific opinion. The cheque is to be forwarded with a demi-official letter requesting an expeditious report. The case has been pending since 2012 and more than fourteen years have passed.

The trial court has been told to conclude the trial immediately after the FSL report comes in and not to entertain any unnecessary adjournment from either side. S.B. Criminal Miscellaneous Petition No. 1175/2015 was accordingly allowed.

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