T. NAGAPPA versus Y.R. MURALIDHAR

Citation: [2008] 6 S.C.R. 959 · Decided: 24-04-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Allowed

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Judgment (excerpt)

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1 
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[2008] 6 S.C.R. 959 
T. NAGAPPA 
v 
Y.R. MURALIDHAR 
(Criminal Appeal No. 707 of 2008) 
APRIL 24, 2008 
(S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ ) 
Code of Criminal Procedure, 1973: 
A 
B 
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 
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 
B 
against him uls 138 of the Negotiable Instruments Act, 
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 
G relevant material. [para 7-8] [964-C, D; 965-A, B] 
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 
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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 
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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 c 
the appellant was bona fide. [para 6-7and 9) [963-D, H; 
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 no

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