2022 (9) TMI 422 - HC - Indian Laws

Dishonor of Cheque - Permission to lead further defence evidence and forward the cheque in dispute to the Hand Writing Expert for opinion - grant of opportunity to the petitioner to adduce evidence by way of rebuttal - rebuttal of presumption raised under section 118 (a) or 139 of NI Act - discharge of burden to prove - HELD THAT - There cannot be any two opinions about the right of an accused to have a fair trial. The accused has a right to defend himself as a part of his human as well as 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 the Criminal Procedure Code. When a defence is raised on behalf of the accused that complainant has misused the cheque, even in a case where a presumption can be raised under section 118 (a) or 139 of the said Act, an opportunity must be granted to the accused for adducing the evidence in rebuttal thereof. As the law places burden on the accused, he must be given an opportunity to discharge his burden. In case of T. NAGAPPA VERSUS Y.R. MURALIDHAR 2008 (4) TMI 789 - SUPREME COURT , it is held by the Apex Court that while granting permission to the accused to lead defence evidence by way of fair trial, he should not be allowed to unnecessarily protract the trial or summon the witnesses whose evidence would not be at all relevant. The proceedings of a case of dishonour of cheque is dragged for more than six years approximately. If the petitioner really wanted to forward the cheque in dispute for hand writing expert s opinion, he could have fled an application immediately after examining his defence witness or after short interval. The evidence of defence witness was recorded on 18.9.2019 and thereafter, the petitioner went on taking adjournments on 29.10.2021, 21.11.2021, 13.12.2021 and 18.12.2021. The petitioner even did not make any attempt to move such application for forwarding the cheque in dispute to the hand writing expert and ultimately, the learned Magistrate was constrained to pass the order to close defence evidence on 18.12.2021 - There was no denial of opportunity. It is rightly observed by the learned Magistrate that the petitioner/accused cannot be allowed to harass the complainant under the guise of fair trial for the accused. I fully endorse the view taken by the learned Magistrate in this regard. The petitioner/accused while facing the cross-examination in paragraph no.8 has candidly admitted that signature and amount on the cheque are written by him. In view of candid admission given by the petitioner, there is no propriety to forward the cheque in dispute to the hand writing expert for opinion mere for the sake of petitioner. It is nothing but one more attempt to delay the proceedings. There is no merit in the petition - The petition is liable to be dismissed by imposing certain costs in order to prevent such abuse of process of law.

Issues Involved:
1. Rejection of the petitioner's applications to lead further defense evidence.
2. Denial of the request to forward the disputed cheque to a handwriting expert for opinion.
3. Allegation of misuse of the cheque by the respondent.
4. Right to a fair trial under Article 21 of the Constitution of India.
5. Delay in trial proceedings.

Issue-wise Detailed Analysis:

1. Rejection of the petitioner's applications to lead further defense evidence:
The petitioner challenged the common order passed by the learned Judicial Magistrate First Class, Aurangabad, which rejected his applications (Exhibit-76 and 77) to lead further defense evidence and to forward the disputed cheque to a handwriting expert. This order was upheld by the Additional Sessions Judge, Aurangabad in Criminal Revision Application No.94 of 2022. The petitioner argued that it is his right to lead defense evidence in view of his defense that the cheque was lost and misused by the respondent. The courts below did not consider this aspect properly, causing injustice to the petitioner and indirectly denying his right to defend his case.

2. Denial of the request to forward the disputed cheque to a handwriting expert for opinion:
The petitioner contended that the cheque in dispute, signed by him but blank, was lost along with important documents, and he had instructed his banker to stop payment. He claimed that certain words filled on the cheque were subsequently added by way of alteration, making it necessary to refer the cheque to a handwriting expert. However, the learned Magistrate and the Additional Sessions Judge rejected this request. The courts observed that the petitioner had ample opportunity to present this request earlier in the trial but failed to do so, indicating a lack of bona fide intent and an attempt to delay the proceedings.

3. Allegation of misuse of the cheque by the respondent:
The petitioner's defense was that the cheque was misused by the respondent after it was lost. He claimed that the cheque was blank but signed by him, and the respondent filled in the details later. The courts, however, noted that the petitioner admitted during cross-examination that the signature and amount on the cheque were written by him. This admission undermined the petitioner's claim of misuse, and the courts found no necessity to forward the cheque to a handwriting expert.

4. Right to a fair trial under Article 21 of the Constitution of India:
The petitioner argued that denying him the opportunity to lead further defense evidence and to forward the cheque to a handwriting expert violated his right to a fair trial under Article 21 of the Constitution of India. The courts acknowledged the right to a fair trial but emphasized that this right does not extend to allowing unnecessary delays in the trial process. The courts found that the petitioner had been given sufficient opportunities to present his defense and that further delays would be unjust to the respondent.

5. Delay in trial proceedings:
The courts noted the significant delay in the trial proceedings, which began with the filing of the complaint on 5.7.2016. The trial was supposed to be concluded within six months as per Section 143(3) of the Negotiable Instruments Act, 1881, but had been prolonged for over six years. The courts observed that the petitioner was responsible for the delays, having taken multiple adjournments and filed applications at late stages. The courts concluded that the petitioner's actions were aimed at protracting the litigation and frustrating the object of the Act.

Conclusion:
The petition was dismissed, and the petitioner was ordered to pay costs of Rs.10,000 to the respondent within two weeks. The courts upheld the decisions of the lower courts, finding no merit in the petitioner's claims and emphasizing the need to prevent abuse of the legal process. The judgment reinforced the principle that while the right to a fair trial is paramount, it does not justify undue delays and procedural abuses.

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