2021 (8) TMI 1338 - HC - Indian Laws

Dishonor of Cheque - examination of cheque through handwriting expert as per provisions of Section 45 of the Indian Evidence Act - Section 138 of the Negotiable Instruments Act 1881 - whether the application of the petitioner for examination of handwriting expert is justifiable or not in view of specific facts and circumstance of the case? - HELD THAT - It is crystal clear that the petitioner s right to lead evidence has been closed against which revision has been dismissed by the Sessions Judge and Criminal Misc. Petition by this Court as well as the SLP by Hon ble the Supreme Court in G. Someshwar Rao Vs. Samineni Nageshwar Rao another 2009 (7) TMI 1378 - SUPREME COURT on the ground of delay. Thus the petitioner has not availed the remedy of defence witnesses but the reason assigned for not examining the evidence is that on the pretext of compromise arrived at between the parties the evidence has not been led therefore it is well settled that 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 subsection (2) of Section 243 of the Code of Criminal Procedure. This Court can draw inference that from very beginning the petitioner has built up the defence that the cheques have been misused by the respondent and opportunity to lead evidence was closed by the learned trial Court which was affirmed by the Revisional Court this Court and SLP has also been dismissed by Hon ble the Supreme Court. In such situation if accused is not granted liberty for his possible defence which he has taken right from the beginning this will amount to denial of principle of natural justice as well as the law laid down by Hon ble the Supreme Court. The order by which the Revisional Court has dismissed the revision and affirmed the order passed by Chief Judicial Magistrate Korba (C.G.) is liable to be and is hereby quashed subject to payment of cost of Rs. 20, 000/- payable to the respondent - Petition allowed.

Summary

Issues Involved:
1. Examination of cheque through handwriting expert.
2. Right to lead evidence and fair trial.
3. Misuse of cheque and defense of the petitioner.
4. Application of Section 20 of the Negotiable Instruments Act, 1881.
5. Procedural fairness and natural justice.

Issue-wise Detailed Analysis:

1. Examination of Cheque through Handwriting Expert:
The petitioner filed an application under Section 45 of the Indian Evidence Act for examination of the cheque by a handwriting expert, asserting that except for his signature, the other particulars on the cheque were not written by him. The trial court dismissed this application, stating that there was no necessity for such an examination and that the petitioner could defend himself by presenting his witnesses. This decision was affirmed by the Revisional Court.

2. Right to Lead Evidence and Fair Trial:
The petitioner argued that his right to a fair trial was compromised as he was not allowed to present evidence to support his defense. The court emphasized that an accused's right to defend himself is a fundamental right under Article 21 of the Constitution of India, and the denial of this right amounts to a denial of a fair trial. The Supreme Court's judgment in G. Someshwar Rao Vs. Samineni Nageshwar Rao & another was cited, which underscores the importance of allowing an accused to present evidence, including expert opinions, to ensure a fair trial.

3. Misuse of Cheque and Defense of the Petitioner:
The petitioner consistently maintained that the cheque in question was lost during travel and was being misused by the respondent. He lodged a police report and reiterated this defense in his reply to the statutory notice, his application to the trial court, and his statement under Section 313 of the Cr.P.C. The court noted that this defense was not a recent development but had been consistently maintained by the petitioner from the beginning.

4. Application of Section 20 of the Negotiable Instruments Act, 1881:
The respondent contended that under Section 20 of the Negotiable Instruments Act, 1881, the holder of the cheque has the authority to complete an incomplete negotiable instrument. However, the court found that this provision did not apply to the peculiar facts and circumstances of the case, as the petitioner's right to lead evidence had already been closed, and the defense of misuse of the cheque was not newly raised.

5. Procedural Fairness and Natural Justice:
The court observed that denying the petitioner the opportunity to present his defense, including the examination of the cheque by a handwriting expert, would violate the principles of natural justice. The court emphasized that procedural rules designed to ensure justice must be scrupulously followed, and any breach of these rules would result in an unfair trial.

Conclusion:
The court quashed the orders of the Revisional Court and the trial court, allowing the petitioner's application for examination of the cheque by a handwriting expert, subject to the payment of costs to the respondent. The trial court was directed to send the cheque for examination and proceed with the trial based on the expert's report, ensuring that the respondent could cross-examine the expert. The petition was allowed with specific directions to ensure a fair trial.