2009 (7) TMI 1378 - SC - Indian Laws

Commission of an offence u/s 138 of the Negotiable Instruments Act - Pronote as also the cheque were forged and fabricated - filed an application for examination of the said pronote as also the cheque - application was dismissed by ACJM - HELD THAT - Indisputably, an accused is entitled to a fair trial which is a part of his fundamental right as guaranteed under Article 21 of the Constitution of India. The concept, however, cannot be put to a straight jacket formula. A court of law will have to consider each application filed by an accused praying for comparison of his signature on a disputed document with his admitted signature on its own merits. No hard and fast rule can be laid down therefor. In this case, the pronote was issued in the year 2002. The cheque was issued in the year 2004. The complaint petition was filed in the year 2004. The complainant examined his witnesses in between the period September 2006 and February 2007. Appellant examined his own witnesses. They had been cross-examined. The learned Magistrate noticed that even the legal notice served upon him was not accepted by the appellant. The court, in the aforementioned situation, held that the gap between execution of two signatures is such where some variance is possible. Rightly or wrongly, his application was dismissed by an order dated 07th April 2007. Immediately thereafter another application was filed on 20th June 2007 which was not maintainable as allowing the same would have amounted to recall of an order passed by the learned Magistrate himself being impermissible in law. In the latter application only the document which was to be sent for comparison was changed. Evidently, he had filed two successive applications; the second application was, thus, not maintainable. This itself goes to show that he intended to delay the disposal of the matter. He could have examined his own expert. He may still do so for which, we are sure, the court shall grant him reasonable opportunity. Even now, the court will be entitled to exercise its jurisdiction, if it so thinks fit and proper in terms of Section 73 of the Indian Evidence Act. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the interest of justice would be subserved if an opportunity is granted to the appellant to examine an expert at his own costs. If he requisitions the services of an expert, the learned Judge would grant him an opportunity to examine the disputed documents, submit a report and examine himself as a witness in the case preferably on the same date. Such a step, however, must be taken by the appellant within six weeks from date. With the aforementioned observations and directions, these appeals are dismissed.

Summary

Issues:
1. Dismissal of application for examination of disputed pronote and cheque by a handwriting expert.
2. Constitutional obligation to permit all defenses for fair trial.
3. Interpretation of Section 243 of the Code of Criminal Procedure, 1973.
4. Applicability of judgments in Kalyani Baskar v. M.S. Sampoornam and T. Nagappa v. Y.R. Muralidhar.

Issue 1: The appellant sought examination of a pronote and a cheque by a handwriting expert, alleging forgery. The application was dismissed by the 1st Additional Judicial Magistrate, citing a High Court decision that the transaction did not relate to the documents. The High Court upheld this decision, emphasizing the evidence of the complainant and lack of specific denial by the appellant. Subsequent applications were also dismissed, with the court noting the intention to delay proceedings. However, the Supreme Court directed that the appellant be granted the opportunity to examine an expert at his own cost within six weeks, emphasizing the interest of justice and fair trial principles.

Issue 2: The appellant argued for a fair trial under Article 21 of the Constitution, contending that the court should ensure all defenses are permitted. Citing precedents, the Supreme Court emphasized that an accused's right to defend themselves, including adducing evidence, is crucial. The court held that denial of this right amounts to a denial of a fair trial, stressing the importance of following procedural rules to ensure justice.

Issue 3: Section 243 of the Code of Criminal Procedure, 1973 provides for the defendant's right to lead evidence in their defense. The court highlighted that this right is not absolute and should not be used for delaying proceedings. The accused's application must serve the cause of justice and not subvert it, with the court having the discretion to refuse applications made for vexation or delay.

Issue 4: The judgments in Kalyani Baskar v. M.S. Sampoornam and T. Nagappa v. Y.R. Muralidhar were cited to support the appellant's argument for a fair trial and the right to present evidence in their defense. These judgments underscored the importance of allowing accused persons to rebut the case against them and emphasized the need for fair and proper opportunities to prove innocence. The Supreme Court applied these principles in directing the appellant to examine an expert within a specified timeframe to ensure a fair trial.