2015 (12) TMI 1876 - HC - Indian Laws

Dishonor of Cheque - defence of forgery - petitioner can be be precluded from taking steps in Law to prove her innocence and preventing the same will lead to serious miscarriage of justice or not - real grievance of the Revision Petitioner/Accused is that she is entitled in law to take any type of defence till the conclusion of the trial of a case and in this regard, the valuable right of the Revision Petitioner/Accused cannot be taken away abruptly because of the simple reason that the 'Defence of Forgery' was not taken at the earliest point of time - principles of natural justice. HELD THAT - One cannot brush aside a very vital fact that a 'Fair Trial' includes fair and adequate opportunities allowed by Law to establish ones innocence. It is to be remembered that adducing necessary oral or documentary evidence in support of a defence is a valuable right and if the same is denied, then it amounts to 'denial of fair trial', as opined by this Court. That apart, Section 243 authorises the defence to project an application for summoning the witnesses and imposes a duty upon the Court to summon such witnesses. A Court of Law cannot avoid /shirk the duty unless it considers that such petition ought to be refused for any of the reasons mentioned in the sub-section, in the considered opinion of this Court. It cannot be gainsaid that what must be the nature of evidence to be adduced by a person/accused should be left the discretion of a party/accused and the same should not be left within the ambit of a Court. Also, it cannot be frightened that the right of an accused to lead evidence in his defence is not absolute. Notwithstanding the presumption that can be raised under Section 118 (a) or 139 of Negotiable Instruments Act, 1881, an opportunity of rebuttal must be granted to an accused for adducing evidence to discharge it. This Court taking note of the peculiar facts and circumstances of the present case and also this Court bearing in mind a prime fact that a Court of Law is to consider an application filed by the Petitioner/Accused praying for comparison of a signature on a disputed document with her admitted signature on its own merits and if an opportunity is granted to the Petitioner/Accused to substantiate her case, then no prejudice would be caused, this Court comes to an irresistible and inevitable conclusion that the view taken by the trial Court with a view to protract the proceedings of the main case etc., are not legally tenable in the eye of Law. Petition allowed.

Summary

Issues Involved:
1. Whether the trial court erred in dismissing the petitions under Section 45 of the Indian Evidence Act, 1872.
2. Whether the accused's right to a fair trial was violated by not allowing the comparison of disputed signatures with admitted signatures.
3. Whether the absence of a reply to the statutory notice and non-payment of witness batta affected the accused's defense.
4. Whether the presumption under Section 139 of the Negotiable Instruments Act, 1881, was properly applied.

Detailed Analysis:

1. Dismissal of Petitions under Section 45 of the Indian Evidence Act, 1872:
The Revision Petitioner filed two Criminal Revision Petitions against the common order dated 25.02.2015 by the Learned Judicial Magistrate, Thuraiyur, which dismissed her petitions under Section 45 of the Indian Evidence Act, 1872. The petitions sought to send disputed cheques for handwriting comparison with her admitted signature. The trial court dismissed these petitions, opining that the petitions were filed to delay proceedings and noting that the defense of forgery was not raised initially.

2. Right to a Fair Trial:
The Revision Petitioner contended that the trial court erred in observing that the defense of forgery was not taken at the earliest opportunity. She argued that she is entitled to take any defense until the conclusion of the trial and that her right to a fair trial includes the opportunity to prove her innocence by comparing disputed signatures with her admitted signature. The court cited several Supreme Court decisions emphasizing the importance of allowing an accused to present a defense, including the comparison of disputed signatures by an expert.

3. Absence of Reply to Statutory Notice and Non-Payment of Witness Batta:
The Respondent/Complainant argued that the Revision Petitioner did not issue a reply to the statutory notice after the dishonor of the cheques and did not pay the witness batta, leading to the closure of the evidence. The trial court dismissed the petitions on these grounds, suggesting that the petitions were filed to delay the proceedings. However, the Revision Petitioner argued that the absence of a reply notice should not lead to a presumption of guilt and that she should be allowed to take steps to prove her innocence.

4. Presumption under Section 139 of the Negotiable Instruments Act, 1881:
The Respondent/Complainant relied on the presumption under Section 139 of the Negotiable Instruments Act, which presumes the existence of a legally enforceable debt or liability. The court noted that this presumption is rebuttable and that the accused should be given an opportunity to present evidence to rebut this presumption. The court emphasized that a fair trial includes allowing the accused to present evidence in her defense.

Court's Conclusion:
The court concluded that the trial court's dismissal of the petitions under Section 45 of the Indian Evidence Act was not legally tenable. The court emphasized the importance of a fair trial and the accused's right to present a defense. The court set aside the trial court's common order dated 25.02.2015 and directed the Learned Judicial Magistrate, Thuraiyur, to reconsider the petitions and pass a reasoned order within four weeks. The court also directed the trial court to dispose of the main cases within three months, ensuring all formalities are completed.

Result:
The Criminal Revision Petitions were allowed, and the common order dated 25.02.2015 was set aside. The trial court was directed to reconsider the petitions and dispose of the main cases within a specified timeframe.