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2022 (9) TMI 422 - HC - Indian LawsDishonor of Cheque - 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 under section 118 (a) or 139 of NI Act - discharge of burden to prove - HELD THAT:- There cannot be any two opinions about the right of an accused to have a fair trial. The accused has a right to defend himself as a part of his human as well as 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 Criminal Procedure Code. When a defence is raised on behalf of the accused that 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 the evidence in rebuttal thereof. As the law places burden on the accused, he must be given an opportunity to discharge his burden. In case of T. NAGAPPA VERSUS Y.R. MURALIDHAR [2008 (4) TMI 789 - SUPREME COURT], it is held by the Apex Court that while granting permission to the accused to lead defence evidence by way of fair trial, he should not be allowed to unnecessarily protract the trial or summon the witnesses whose evidence would not be at all relevant. The proceedings of a case of dishonour of cheque is dragged for more than six years approximately. If the petitioner really wanted to forward the cheque in dispute for hand writing expert’s opinion, he could have fled an application immediately after examining his defence witness or after short interval. The evidence of defence witness was recorded on 18.9.2019 and thereafter, the petitioner went on taking adjournments on 29.10.2021, 21.11.2021, 13.12.2021 and 18.12.2021. The petitioner even did not make any attempt to move such application for forwarding the cheque in dispute to the hand writing expert and ultimately, the learned Magistrate was constrained to pass the order to close defence evidence on 18.12.2021 - There was no denial of opportunity. It is rightly observed by the learned Magistrate that the petitioner/accused cannot be allowed to harass the complainant under the guise of fair trial for the accused. I fully endorse the view taken by the learned Magistrate in this regard. The petitioner/accused while facing the cross-examination in paragraph no.8 has candidly admitted that signature and amount on the cheque are written by him. In view of candid admission given by the petitioner, there is no propriety to forward the cheque in dispute to the hand writing expert for opinion mere for the sake of petitioner. It is nothing but one more attempt to delay the proceedings. There is no merit in the petition - The petition is liable to be dismissed by imposing certain costs in order to prevent such abuse of process of law.
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