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TMI Blog2010 (12) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... ent / complainant issued legal notice to the revision Petitioner / accused, then, filed the complaint before the court below. When the matter is pending, the Petitioners filed a petition, seeking an order to send the cheque to decide the age of the ink. 4. Learned Counsel appearing for the Petitioners submitted that the cheque was given for collateral purpose, that was misused by the first Respondent / complainant and therefore, the age of the ink used for putting the signature and writing of the other portion of the cheque is relevant. However, the Court below dismissed the petition filed by the Petitioners. 5. Per contra, learned Counsel appearing for the first Respondent submitted that the Petitioners have admitted the signature available in the dishonoured cheque and therefore, there is no necessity for sending the cheque to any expert for the purpose to decide the age of the ink. According to the learned Counsel appearing for the first Respondent, it is a clear abuse of process of the court and he further contended that there is no error on the part of the court below in dismissing the petition filed by the Petitioner, as it was a delay tactics adopted by the Petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Apex Court has held that though there could be presumption raised under Section 118(a) or 139 of Negotiable Instruments Act, when there is a defence raised by the accused that the complainant had misused the cheque, opportunity must be given to the accused for adducing rebuttal evidence thereof, since the law places burden on the accused, he must be given an opportunity to discharge the burden. The Hon'ble Apex Court has further held as follows: 8. An 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, which reads as under: 243. Evidence for defence -(1) (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, Code of Criminal Procedure without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2), Code of Criminal Procedure 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 17. As per the adversarial system of criminal jurisprudence, the prosecution has to establish the alleged guilt against the accused beyond reasonable doubt and accordingly, the burden is upon the prosecution to establish the guilt. If the guilt is not established by the prosecution beyond reasonable doubt, the accused is entitled to get acquittal. Even if there is suspicious circumstance, the benefit of doubt shall be given to the accused. 18. Hon'ble Apex Court in T. Nagappa's case has categorically held that right to defend is a fundamental right as enshrined under Article 21 of the Constitution of India and the right to defend oneself and for that purpose, adduce evidence is recognised by the Parliament, as per Sub-section (2) of Section 243 of the Code of Criminal Procedure. However, no one can adopt delay tactics or abuse the process of law or the court under the guise of reasonable opportunity. 19. Kalyani Baskar's case, the Hon'ble Apex Court has categorically held that the Magistrate, who is empowered to pass orders, has to allow the petition, unless he thinks that the object of the Appellant is vexation or delaying the criminal proceedings. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different stand and now the present stand was that the Laboratory at Madurai is not having facility to give opinion on the questions 2 to 6 and therefore, the cheque in question may be forwarded to the Laboratory at Hyderabad and that the Petitioners have not pressed question number 1 relating to the comparison of the signature and they were particular about the age of the ink. From the findings, it is clear that the Petitioners / A1 and A2 have not disputed the signature available in the cheque. Further, in the operative portion of the order, this Court had directed the Judicial Magistrate, Tirunelveli to send the question for the opinion of the expert regarding question numbers 2 to 6 alone relating to the age of the ink and it was also made clear that if the report is not received within three months from the date of sending the cheque in question, the trial court should proceed with the case and dispose the same on merits in accordance with law. Though the order was passed on 02.12.2009 and as per the report of the Forensic Laboratory, Hyderabad, they could not find out the age of the ink in the Laboratory, again the Petitioners have come forward with a petition to send the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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