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TMI Blog2022 (9) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd order dated 9.6.2022. 4. In the above premise, the petitioner has challenged the orders passed by the Courts below. 5. Heard Mr. L.D.Vakil, learned counsel for the petitioner and Mr. Bhandari, learned counsel for the respondent. 6. Mr. Vakil, learned counsel for the petitioner vehemently submitted that, it is right of the petitioner/accused to have a fair trial. It is for the petitioner/accused to lead defence evidence in view of his defence and the Court has no role to play in that respect. It is the defence of the petitioner since beginning that cheque in dispute was lost, which was blank but singed by him and it is misused by the respondent. He has instructed his banker to stop payment. Accordingly, the payment stop order was passed by the Banker. He submitted that, it is the defence of the petitioner that certain words flled on the cheque in dispute have been subsequently added by way of alteration. As such, it is very much necessary to refer the cheque in dispute to the hand writing expert for opinion. Learned Magistrate as well as the Additional Sessions Judge, Aurangahad did not consider this aspect in a proper perspective and turned down the prayer made by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent/complainant is fghting with this litigation since more than 5 years. He invited my attention to the order passed by the learned Magistrate and pointed out as to how the petitioner/accused has delayed the trial by one way or the other. He submitted that, the applications moved by the petitioner were not bonafde and Courts below have rightly rejected the prayer made by the petitioner by reasoned order. He, therefore, urged to dismiss the petition. 10. 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 mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate holding an inquiry under the Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant concluded. 20.12.2017 vi Examination of accused under section 313 of Cr.P.C. 20.3.2019 vii Examination-in-chief on affdavit fled on behalf of the petitioner/accused. 22.4.2019 viii Further, examination-in-chief of 27.6.2019 the petitioner/ accused before the Court. ix Cross examination of the petitioner / accused commenced and concluded. 22.7.2019 x Defence witness no.1 examination by the petitioner 18.9.2019 xi Adjournment taken by the petitioner to adduce further defence evidence. 29.10.2021, 21.11.2021, 13.12.2021 and 18.12.2021 xii The learned Judicial Magistrate First Class, Passed the order of closure on defence evidence. 18.12.2021 xiii The application for setting aside the evidence defence closure the order passed by the Judicial Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20. The applications vide exhibit 76 and 77 came to be fled on 21.2.2022 after lapse of two months. If this factual aspect is taken into consideration, it is diffcult to accept that the applications moved on behalf of the petitioner's vide exhibit 76 and 77 were bonafde, it was one more attempt made by the petitioner to prolong the trial by taking undue advantage of the provisions. Learned Magistrate has rightly considered this aspect more particularly in the impugned order paragraph no.12. In the above scenario, it is very much clear that more than suffcient opportunities were given to the petitioner to lead his defence evidence. There was no denial of opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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