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TMI Blog2011 (1) TMI 1577X X X X Extracts X X X X X X X X Extracts X X X X ..... business of diamonds. It is alleged that the accused applicant herein is also a Proprietor of Prakash Corporation which is dealing in diamonds. According to the complainant, he sold cut diamonds under Invoice dated 07/06/2007 worth Rs 3,25,220/- to the accused and, according to him, in discharge of the said liability, the accused issued two cheques to the complainant drawn on Bank of Baroda, Altamount Road Branch, Mumbai; one dated 05/07/2007 for an amount of Rs 1,45,000/- and the other dated 10/07/2007 for an amount of Rs 1,75,000/-. According to the complainant, the said cheques were signed by the accused in his capacity as an authorized signatory of M/s Prakash Corporation. The said cheques, when they were deposited, were returned unpaid by the Banker of the accused. The complainant issued legal notice dated 27/09/2007 and called upon the accused to make payment of the aforesaid amount within 15 days from the date of receipt by the accused. This notice was served. However, thereafter, since the amount was not paid, complainant filed this complaint under section 138 of the Negotiable Instruments Act. Alongwith the complaint, both the cheques were annexed so also the Bank Memo, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant has relied upon the Judgments of the Supreme Court in Someshwar Rao vs. Samineni Nageshwar Rao Anr. 2009 ALL MR (Cri) 2815 (S.C.) , Mrs Kalyani Baskar vs. Mrs. M.S. Sampoornam 2007 ALL MR (Cri) 820 (S.C.) and also in T. Nagappa vs. Y.R. Muralidhar 2008 ALL MR (Cri) 1945 (S.C.). Shri Ponda, the learned Counsel appearing on 1 2 3 behalf of the applicant was at pains to point out that in the cross-examination the complainant in para 2 has stated It is not correct to say that except signature, all details of the cheue are not written by accused. He also submitted that the complainant had denied the suggestion of the accused that the complainant had told the accused to give two blank cheques on security basis before showing the diamonds to prospective buyers. He also submitted that the complainant had denied that he had written other details of the cheques as per his convenience. He submitted that in view of the said denial of the suggestions made by the counsel for the accused, it has become necessary to prove that the accused had not filled up the said cheques. 5. On the other hand, the learned Counsel appearing on behalf of the Respondent No.2 submitted that this appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court. The said provision clearly envisages that a fair opportunity has to be given to the accused to set up his defence and therefore, he has a right to make an application for issuing summons for examining any witness of his choice or for production of any document or thing. However, this right is subject to permission being granted by the Magistrate. The Magistrate is also empowered under sub-clause (2) of section 243 to reject such application if he feels that it is filed for protracting the proceedings. 8. By virtue of this provision, therefore, the responsibility is cast on the Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted such request, unless the Magistrate had come to the conclusion that the appellant was protracting the trial. Ratio of this judgment will not apply to the facts of the present case since, in the present case, the applicant/accused has not disputed his signature on the said cheque but he is disputing the handwriting in filling up the other particulars of the said cheque. In T. Nagappa 2008 ALL MR (Cri) 1945 (S.C.) (supra), the accused had filed an application for referring the cheque in question for examination by the Director of Forensic Science Laboratory for determining the age of his signature, contending that the respondent had obtained the signed cheque from him in the year 1999 as a security for hand loan of Rs 50,000/- which had been paid back, but instead of returning the cheque, the same had been misused by entering a huge amount which he did not owe to the appellant. The Trial Court as well as the High Court in the said case relied on section 20 of the Negotiable Instruments Act and rejected the contention of the accused having regard to the provisions of section 20 of the Negotiable Instruments Act. The Apex Court however observed that when one person signs and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1945 (S.C.) (supra) the case of the accused was that his signature was obtained in 1999. He, therefore, did not dispute his signature but disputed time at which it was made and, therefore, felt that it should be sent to the Forensic Science Laboratory to determine the age of the ink. The facts of the said case were, therefore, quite different than the facts of the present case and, lastly, in G. Someshwar Rao 2009 ALL MR (Cri) 2815 (S.C.) (supra), the Apex Court, after having observed that the second application made by the accused was not maintainable and also after having noted that this was made to protract the trial, granted the application in view of the peculiar facts and circumstances of the said case. Ratio of both these judgments therefore will not apply to the facts of the present case. 12. The learned Counsel appearing on behalf of Respondent No.2 - M/s Maanit Jewels also relied upon various judgments of other High Courts which I do not propose to deal with since those decisions have been given on the facts of the said cases. 13. Mr. Ponda, the learned Counsel appearing on behalf of the applicant/accused had laid much emphasis on the observations made by the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate having declined to send the document for the examination and opinion of the handwriting 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 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 the courts should be jealous in seeing that there is no breach of them. The Apex Court, therefore, came to the conclusion that the application made by the accused alleging that the complainant had misused the cheque was bonafide. 14. In my view, in the present case, the learned Magistrate has rightly held that the application filed by the applicant/accused is not bonafide and he has given cogent reason for it. 15. The Madras High Court in S. Gopal vs. D. Balachandran 2008 DGLS (DOC) 56 has observed that provisions contained in section 20 applies on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid authority. A general proposition has been made to the effect that there is a presumption, in case a signed cheque is delivered to the payee, that the cheque so issued by the drawer in favour of the payee is only towards the discharge of his subsisting liability. Finally, the Madras High Court in the said judgment in S. Gopal 2008 DGLS (DOC) 56 (supra) has has observed in para 11 has under:- 11. Even in case of a cheque, as there is no clear provision in the Negotiable Instruments Act, in the light of the above discussion, the Court finds that if a drawer of a cheque gives authority to the payee or holder in due course or a stranger for that matter to fill up the cheuqe signed by him, such an instrument also is valid in the eye of law. There is no bar for the drawer of a cheque to give authority to a third person to fill up the cheque signed by him for the purpose of negotiating the same. 16. Taking into consideration the aforesaid judgments, therefore, if an application is made for sending the document to the Handwriting Expert particularly in a complaint which is filed under section 138, the Magistrate has to consider the said application and taking into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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