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TMI Blog2022 (6) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... er passed by the learned Chief Judicial Magistrate, South Tripura, Belonia refusing to allow further chance to the accused (petitioner herein) for adducing evidence of defence witnesses. [4] Factual background of the case is as under: Smt. Rikta Paul Sarkar, wife of Late Sankar Prasad Sarkar alias Sankar Sarkar of Baidya Tilla, Belonia lodged a written complaint in the Court of the Chief Judicial Magistrate at Belonia on 20.07.2016 alleging, inter alia, that accused Milan Paul, a business man, had taken loan of a sum of rupees ten lakhs from the husband of the complainant in July, 2013. In order to repay the loan accused Milan Paul had issued cheque No. 322197 dated 04.09.2015 (Exbt.1) drawn on State Bank of India in the name of said Sankar Sarkar, husband of the complainant. Since the complainant and her husband maintained their bank accounts in State Bank of India at its Belonia branch, her husband had presented the cheque to SBI at the Belonia branch for encashment on 15.09.2015. But the cheque was returned unpaid for the reason that amount available in the account of the accused was not sufficient for encashment of the cheque. Complainant's husband sent statutory notice to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the holder in due course of the cheque and as such a complaint can be entitled to be treated as maintained by the petitioner but whether the delay as occurred in filing the complaint would be condoned or not, would be decided by Chief Judicial Magistrate in as much as under the proviso to Section 142(b) of the N.I. Act, it is requisite that the explanation must satisfy the Magistrate to get the delay condoned. 14. Having observed thus, the impugned order dated 27.03.2017 delivered in Criminal Revision 13 of 2016 is set aside and as consequent thereupon, the order dated 20.07.2016 passed by the Chief Judicial Magistrate, South Tripura, Belonia stands quashed. The case is remitted to the Chief Judicial Magistrate to act in terms of this order. In the result this petition stands allowed." [10] Pursuant to the order of this Court the learned Trial court decided the matter regarding condonation of delay by registering case No. Misc.(N.I) 52 of 2017. The trial Court after hearing the parties represented by their counsel passed an elaborate order on 02.04.2018 condoning the delay of 232 days in filing the complaint which reads as under: "02.04.2018 ****** Starting from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r supported by any document not verified. I also find in the petition that some of the name of witnesses listed for issuing summons but their address is not given properly. Moreover this is a complaint case, parties has to produce their witnesses on their own and from the record I also find that same petition has been rejected vide order dated 15.03.2019. Considering the above fact and circumstances the petition filed by the accused side is hereby rejected at the very threshold. Thus, the chapter of DWs is hereby closed." [14] The case was then listed for hearing arguments. The accused challenged the order by filing Criminal Revision No.06 of 2019 in the Court of the Sessions Judge, South Tripura at Belonia. The learned Sessions Judge decided the criminal revision by order dated 27.07.2021 whereby the learned Sessions Judge uphold the order of the trial Court and dismissed the criminal revision. The order passed by the learned Sessions Judge in the criminal revision reads as under: "27.07.2021. ******I have also perused the judgment relied upon by learned counsel for the revision petitioner and in this judgment, the Hon'ble High Court of Madras has discussed about Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Procedure, 1973 applies to the trial of a case under the N. I Act. Counsel contends that under Sub Section (2) of Section 243 Cr. P.C it is mandatory on the part of the trial Court to issue process to the defence witnesses when the accused applies for the same, unless it appears to the court that application for issuing process to witnesses has been made by the court for the purpose of vexation or delay or for defeating the ends of justice. Section 243(2) Cr. P.C casts a duty on the trial Court to record reasons when application for issuing process to the witnesses is refused. In support of his contention counsel has relied on the decision of the Apex Court in the case of Kalyani Baskar (Mrs.) Vrs. M. S. Sampoornam(Mrs.); reported in (2007) 2 SCC 258. In this case, accused in a case under Section 138 N.I. Act applied to the trial Court for sending the cheque in question for opinion of hand-writing expert after the complainant closed her evidence. The trial court refused the prayer of the accused which was upheld by the High Court. The Hon'ble Apex Court set aside the order of the High Court and held as under: "12. Section 243 (2) is clear that a Magistrate holding an inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the decision of the Apex Court in the case of T. Nagappa Vrs. Y. R. Muralidhar; reported in (2008) 5 SCC 633. In this case also accused made a similar prayer to the trial Court for sending the disputed cheque to the forensic science laboratory for determining the age of his signature which was dismissed by the trial Court. The High Court also dismissed the revision application against the order of the trial Court. The Apex Court held that accused has a right to fair trial. He has a right to defend himself as a part of his human as also 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 recognised by parliament in terms of Sub Section (2) of Section 243 of the Code of Criminal Procedure, 1973. The Apex Court reiterated the principles enunciated in the case of Kalyani Baskar (supra) and held as under: "9. What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. 9. In Mir Mohd. Omar & Ors. v. State of West Bengal, AIR 1989 SC 1785, this Court examined an issue wherein, after the statement of the accused under Section 313 Cr.P.C. had been recorded, the prosecution had filed an application to further examine a witness and the High Court had allowed the same. This Court then held, that once the accused has been examined under Section 313 Cr.P.C., in the event that liberty is given to the prosecution to recall a witness, the same may amount to filling up a lacuna existing in the case of the prosecution and therefore, that such an order was uncalled for. 10. In Mohanlal Shamji Soni v. Union of India & Anr., AIR 1991 SC 1346, this Court examined the scope of Section 311 Cr.P.C., and held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses and documents for the defence, it must be borne in mind that the legislative intent for the aforesaid change in the procedure is mainly for achieving expeditiousness of the trial. It is true that the concept of speedy trial must apply to all trials, but in the trials for offences relating to corruption the pace must be accelerated with greater momentum due to a variety of reasons. Parliament expressed grave concern over the rampant ever-growing corruption among public servants which has been a major cause for the demoralisation of the society. When corrupt public servants are booked they try to take advantage of the delay-proned procedural trammels of our legal system by keeping the penal consequences at bay for a considerable time. It was this reality which impelled the Parliament to chalk out measures to curb procrastinating procedural clues. Section 22 of the P.C. Act is one of the measures evolved to curtail the delay in corruption cases. So the construction of Section 243(1) of the Code as telescoped by Section 22 of the PC Act must be consistent with the aforesaid legislative intent. 17. The purpose of furnishing a list of witnesses and documents to the Court before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their witnesses on their own. Both of these orders passed by the learned Chief Judicial Magistrate were challenged in Criminal Revision No.6 of 2019 before the learned Sessions Judge who was also of the view that learned Chief Judicial Magistrate rightly rejected the petition of the accused on the grounds that in a complaint case parties are under the obligation to adduce evidence on their own. According to learned Sessions Judge, the accused could not establish that before filing the petition for issuing summons to the witnesses he himself had taken any initiative to produce those witnesses. Moreover, initially he wanted the Court to issue summons to nine witnesses and subsequently, he applied for issuing summons to six witnesses. On these grounds, the learned Sessions Judge upheld the orders dated 15.03.2019 and 14.06.2019 passed by the Chief Judicial Magistrate. [24] It is no case of either of the parties that Section 243 Cr. P.C has no application in this case. The Apex Court has also approved the applicability of Section 243 Cr. P.C in a case under Section 138 N.I. Act in the judgment rendered in Kalyani Baskar (supra) as well as in the case of T. Nagappa (supra). Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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