2022 (6) TMI 137 - HC - Indian Laws

Dishonor of Cheque - the trial Court by refusing to issue summons to the witnesses of the accused petitioner (DW) had denied the constitutional right of the accused to defend himself in a criminal proceeding - HELD THAT - From a plain reading of Sub Section (2) of Section 243 Cr.P.C it would emerge that after the accused in a case has entered upon his defence and applies to the Magistrate to issue process for compelling the attendance of any witness for examination or cross-examination or for production of any document or other things, it is obligatory on the part of the Magistrate to issue such process. Under Sub Section (2) Magistrate can refuse to issue such process on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Moreover, such ground should be recorded in writing by the Magistrate. The reasons assigned by the trial Court as well as by the learned Sessions Judge for refusing the prayer of the accused for issuing summons to his witnesses are not acceptable in view of the law laid down by the Apex Court in the cases MRS. KALYANI BASKAR VERSUS MRS. M.S. SAMPORNAM 2006 (12) TMI 545 - SUPREME COURT and T. NAGAPPA VERSUS Y.R. MURALIDHAR 2008 (4) TMI 789 - SUPREME COURT . The petitioner is an accused under Section 138 N.I Act punishment of which may extend to imprisonment for a term up to two years or with fine which may extend to twice the amount of cheque or with both. Therefore, he should be allowed fair and proper opportunity to prove his innocence. Adducing evidence in support of his defence is a valuable right of him which cannot be denied to him. If for non submission of the true particulars of the witnesses, the trial Court felt it difficult to issue summons to the defence witnesses, trial Court could have asked the accused to submit proper particulars of the witnesses. One of the reasons assigned by the trial Court is that in a complaint case it is the duty of the accused to produce the defence witnesses on his own and court cannot issue summons to the defence witnesses. It is true that accused should not be allowed to unnecessarily protract the trial or request the Court to issue summons to the witnesses whose evidence would not at all be relevant for deciding the case. In such situation the trial Court may discard the petition of the accused on the ground of vexation and delay. In the case in hand, no such ground has been assigned by the trial Court for refusing to issue summons to the witnesses of the accused - the impugned order passed by the learned Sessions Judge affirming the order of the trial Court stands set aside. The criminal revision petition is disposed of.

Summary

Issues Involved:
1. Correctness of the impugned order refusing further adjournment for adducing evidence of defence witnesses.
2. Legitimacy of the trial court's refusal to issue summons to defence witnesses.
3. Fair trial and the accused's right to defend himself.

Issue-Wise Detailed Analysis:

1. Correctness of the Impugned Order Refusing Further Adjournment for Adducing Evidence of Defence Witnesses:
The trial court initially refused to admit the complaint on the grounds that it was not filed by the holder of the cheque and there was no provision in the N.I Act to deal with an application for condonation of delay. This decision was upheld by the Sessions Judge, but later overturned by the High Court, which allowed the complaint to be maintained by the petitioner as the legal heir. The delay in filing the complaint was subsequently condoned by the trial court.

During the trial, the complainant examined herself, and the accused was examined under Section 313 Cr. P.C, where he denied the charge and expressed his desire to adduce evidence in his defence. However, the trial court refused further adjournments for the accused to present his defence witnesses, citing insufficient particulars of the witnesses and the obligation of the accused to produce witnesses on his own in a complaint case.

2. Legitimacy of the Trial Court's Refusal to Issue Summons to Defence Witnesses:
The trial court refused to issue summons to the defence witnesses on the grounds that proper particulars were not furnished and that in a complaint case, it was the duty of the accused to produce witnesses on his own. The Sessions Judge upheld this decision, noting that the accused did not demonstrate any initiative to produce the witnesses himself and had changed the list of witnesses.

The High Court, however, found these reasons unacceptable, citing the Supreme Court's rulings in Kalyani Baskar v. M. S. Sampoornam and T. Nagappa v. Y. R. Muralidhar, which affirm the applicability of Section 243 Cr. P.C in cases under the N.I Act. The court emphasized that the accused has a valuable right to adduce evidence in support of his defence and that the trial court should have asked for proper particulars if they were not initially provided.

3. Fair Trial and the Accused's Right to Defend Himself:
The High Court underscored that the accused should be given a fair and proper opportunity to prove his innocence, which includes the right to adduce evidence in his defence. The court held that denying this right without valid grounds amounts to a denial of a fair trial. The trial court's refusal to issue summons to the defence witnesses was not based on any ground of vexation or delay, and thus, was deemed arbitrary.

Conclusion:
The High Court set aside the impugned order of the Sessions Judge and directed the accused to submit a fresh petition for issuing summons to his witnesses with complete postal addresses. The trial court was instructed to decide the petition in accordance with the law and the principles laid down by the Supreme Court. The criminal revision petition was thus disposed of, ensuring the accused's right to a fair trial was upheld.