2008 (4) TMI 789 - SUPREME COURT

Dishonor of Cheque u/s 138 of the Negotiable Instruments Act - legally enforceable debt or not - Permission to lead further defence evidence and forward the cheque in dispute to the Hand Writing Expert for opinion - grant of opportunity to the petitioner to adduce evidence by way of rebuttal - rebuttal of presumption raised u/s 118 (a) or 139 of NI Act - discharge of burden to prove - fair trial - HELD THAT:- When a contention has been raised that the 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 evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. 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 recognized by the Parliament in terms of Sub-section (2) of Section 243 of the CrPC.

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 the accused in terms of Sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.

The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide.

Ms. Suri, however, pointed out that the application of the appellant being one under Section 293 of the CrPC was rightly rejected. It is now a well settled principle of law that non-mentioning or wrong mentioning of provision of law would not be of any relevance, if the Court had the requisite jurisdiction to pass an order.

Therefore, the impugned judgment cannot be sustained. It is set aside accordingly with the aforementioned directions.

Appeal is allowed.