[2026:RJ-JP:20832] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 1956/2019 Smt. Ram Krishna Soni W/o Late Shri M.K. Soni, Aged About 41 Years, R/o 72A, Ist, Balvihar Colony, Jhotwara, Jaipur. ----Petitioner Versus 1. State Of Rajasthan, Through PP. 2. Shri Gopal Soni S/o Shri Madan Mohan Soni, R/o House No.2371, First Chauraha, Khajane Walon Ka Rasta, Jaipur, Raj. ----Respondents For Petitioner(s) : Mr. Ajay Shukla along with Mr. Raghav Sharma, Mr. Jyoti Sharma and Mr. Shivam Sharma For Respondent(s) For State : : Mr. Sanjay Sharma Mr. Sudesh Saini, P.P. HON'BLE MR. JUSTICE GANESH RAM MEENA Order 18/05/2026 1. This criminal miscellaneous petition has been filed by the petitioner with a challenge to the order dated 02.03.2019 passed by the Court of learned Additional Chief Metropolitan Magistrate, No.10, Jaipur Metropolitan, in Criminal Case No.1662/2012, whereby the application, filed by her under Section 311 Cr.P.C. read with Section 73 of the Indian Evidence Act seeking Forensic Science Laboratory (for short ‘FSL’) opinion about her alleged forged signature on the disputed cheque, was rejected. 2. As per the facts on record, a complaint was filed by the respondent No.2 under Section 138 of the Negotiable Instruments [2026:RJ-JP:20832] (2 of 6) [CRLMP-1956/2019] Act (for short ‘NI Act’) in the Court of learned Civil Judge (Senior Division) and Additional Metropolitan Magistrate, No.10, Jaipur Metropolitan, Jaipur, against the present petitioner with regard to dishonour of the cheque for an amount of Rs.1,50,000/-. After service of summons, the petitioner appeared in the proceedings and during trial she has denied the factum of her signature on the cheque and filed an application before the learned Trial Court seeking relief to the effect that she may be allowed to submit a report of private hand writing expert. The said application came to be allowed vide order dated 03.05.2016, however, due to some unforeseen circumstances, the said report could not be submitted at the relevant time. Due to which, the Court vide order dated 20.10.2016 closed the opportunity to submit the report and one more application, filed in this respect by the petitioner, was rejected on 16.12.2016. The petitioner subsequently submitted her signature and the report of the private hand writing expert before the concerned Court and moved an application under Section 311 Cr.P.C. read with Section 73 of the Indian Evidence Act with the prayer to compare the signatures, as per the provisions of the Section 73 of the Indian Evidence Act. The learned trial Court vide its order dated 02.03.2019 rejected the said application filed by the petitioner with the observation that she is delaying the matter. Hence, the petitioner, being aggrieved with the impugned order dated 02.03.2019, has preferred the instant criminal misc. petition. 3. Learned counsel for the accused petitioner submits that the learned Trial Court has erred in closing the defence of the [2026:RJ-JP:20832] (3 of 6) [CRLMP-1956/2019] petitioner without appreciating the explanation tendered by her. He further submits that it is the basic right of the petitioner to get verified the alleged forged signature on the disputed cheque from the FSL, as from the very beginning it has been alleged that signature on the disputed cheque is forged one. 4. Learned counsel for the accused petitioner has relied upon the judgment passed by the Co-ordinate Bench of this Court on 13.04.2026 in the case of Mahesh Tiwari Vs State of Rajasthan & Anr.; Criminal Miscellaneous Petition No. 1175/2015. 5. Per contra, the learned Public Prosecutor as well as the learned counsel for the complainant-respondent have opposed the arguments raised by the learned counsel for the accused- petitioner. 6. Heard and considered the submissions made at Bar and also perused the material made available on record. 7. The Court cannot be the expert of everything. There could be prima-facie satisfaction of the Court as regards the resemblance of the signature, but the specific report can only be given by the concerned testing agency, whether the signatures resembles or not. 8. The Co-ordinate Bench in this Court in the case of Mahesh Tiwari (supra) observed as under:- “12. Section 139 of the Act of 1881 creates a presumption in favour of the holder, which reads as under:— “139. Presumption in favour of holder:— It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in [2026:RJ-JP:20832] (4 of 6) [CRLMP-1956/2019] whole or in part, or any debt or other liability.” 13. Thus, while Section 139 of the Act of 1881 creates a presumption in favour of the holder of cheque, it also permits the accused-offender the right to prove ‘to the contrary’. Hence, it is not an absolute presumption, but a rebuttable one. 14. The right to fair trial cannot be overemphasized. Needless to say, the right emanates from Article 21 of the Constitution of India which is the heart and soul of the Constitution. The first principle of common law is that every person is presumed to be innocent till proven guilty. But, Section 139 of the Act of 1881 reverses this presumption under the common law. Therefore, the burden of proof shifts to the accused in the case of offence under Section 138 of the Act. Since the presumption is in favour of the holder, it is for the accused to disprove his guilt. In such a scenario, naturally the right to fair trial becomes stronger. Thus, this right deserves to be protected more strongly and emphatically than in ordinary criminal offences under the Penal Code, 1860. 15. The Hon’ble Apex Court in the case of Kalyani Baskar (Mrs.) (supra), has held in Para 12, which reads as under:- “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 [2026:RJ-JP:20832] (5 of 6) [CRLMP-1956/2019] 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.” 16. In view of the circumstances and case laws as discussed hereinabove, the question of fact as to whether the signature in question is original/authentic or not cannot be decided without the opinion of a handwriting expert. Thus, it is important to send the cheque in question to the FSL for its scientific opinion.” 9. In view of the facts brought on record and so also the observations of the Co-ordinate Bench in the case of Mahesh [2026:RJ-JP:20832] (6 of 6) [CRLMP-1956/2019] Tiwari (supra), to which this Court also agrees, this Court deems just and proper to exercise the inherent jurisdiction. 10. Accordingly, this criminal miscellaneous petition is allowed. The order dated 02.03.2019 passed by the Court of learned Additional Chief Metropolitan Magistrate, No.10, Jaipur Metropolitan, in Criminal Case No.1662/2012 is quashed and set aside. 11. The application, filed by the petitioner under Section 311 Cr.P.C. read with Section 73 of the Evidence Act seeking report of FSL regarding the signature on the disputed cheque, is allowed. 12. The trial Court is directed to send the cheque in question to the FSL after taking the specimen signatures of the accused-petitioner in Court for analysis of the disputed signature, by writing the letter to the FSL for sending its report expeditiously. 13. Since, the case was registered in the year 2012, the trial Court is expected to conclude the trial at the earliest after receiving the report from the FSL. 14. The stay application and pending application(s), if any, also stand disposed of. (GANESH RAM MEENA),J ARTI SHARMA /30