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TMI Blog2015 (12) TMI 1876X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Petitioner), batta was not paid and under these circumstances, the evidence on the side of the Accused (Revision Petitioner) was closed on 11.06.2014 and at that point of time, Cr.M.P.Nos.5101 and 5102 of 2014 were filed to recall P.W.1 were dismissed by this Court on 08.08.2014, with an observation that there were no grounds to allow the same and subsequently, when the case was posted for hearing the arguments, at that point of time, the Accused has filed the present petition etc., and ultimately, opined that at the initial stage itself that, in the case cheques, the plea that they were not his signatures and they were created, such kind of stand was not taken and when the case was posted for arguments, at that point of time, the filing of the two petitions was meant with a view to delay the proceeding and resultantly dismissed the petitions. 3. Being dissatisfied with the common order dated 25.02.2015 in Cr.M.P.Nos.8882 and 8885 of 2014, the Revision Petitioner/Accused has preferred the instant Criminal Revision Petitions before this Court, exercising the procedural facility enunciated under Criminal Procedure Code, contending that the common order dated 25.02.2015 in Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prove her innocence by comparing the disputed signature with her admitted signature. 9. To lend support to the contention that the Revision Petitioner/Accused ought to have been provided with an opportunity by the trial Court in allowing the Cr.M.P.Nos.8882 and 8885 of 2014, the Learned Counsel for the Petitioner/ Accused seeks in aid of the decision of the Honouarble Supreme Court (G. Someshwar Rao vs. Samineni Nageshwar Rao and Another) reported in 2009 (14) SCC 677 at special pages 678 and 679 in paragraphs 8 and 9, it is observed and held as follows: 8. Mr. C. Mukund, learned Counsel appearing on behalf of the appellant would submit that having regard to the fact that the accused is entitled to a fair trial, his application for examination by an expert within the meaning of Section 45 of the Indian Evidence Act, 1872 for the purpose of establishing that a document, where upon the prosecution rests its case, being not genuine, the court was under a constitutional obligation to ensure that the is permitted to take all defences. Strong reliance in this behalf has been placed on judgments of this Court in the case of Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant to fan 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 support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C. without naming any personas witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was put to P.W.1/Complainant about the aspect of 'Defence of Forgery' and also that the Revision petitioner/Accused had not preferred any complaint before the police that his signature in the two cheques in question was forged and also when the Respondent/Complainant issued Ex.P6 - Legal notice, for which also the Revision Petitioner/Accused had not issued any reply and the non-issuance of reply notice by the Revision Petitioner is certainly an adverse circumstance against the Revision Petitioner. 14. Furthermore, it is the contention of the Learned Counsel for the Respondent/Complainant that the Petitioner/Accused had not paid the necessary batta and that the closure of evidence by the trial Court in the main case on 11.06.2014 and posting the case for arguments does not suffer from any serious, material irregularity, patent illegality in the eye of Law. 15. The Learned Counsel for the Respondent/Complainant to substantiate his contention that the presumption mentioned in Section 139 of the Negotiable Instruments Act includes a presumption that there exists a legally enforceable debt or liability relies on the decision of Honourable Supreme Court (Rangappa vs. Sri Moh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused 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. 19. On a careful consideration of respective contentions and in the upshot of detailed qualitative and quantitative discussions as mentioned supra, 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 in the common order dated 25.02.2015 that the Petitioner/Accused had f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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