TMI Blog2008 (4) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Appeal is allowed. - MR. S.B. Sinha and L.S. Panta, JJ. For Appellant/Petitioner/Plaintiff: S.B. Sanyal, Sr. Adv. and Rajesh Mahale, Adv For Respondents/Defendant: Kiran Suri, S. J. Amith and Aparna Bhat, Advs. JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. Appellant is facing criminal charges before the Court of XV Additional Chief Metropolitan Magistrate, Bangalore in C.C. No. 6835 of 2005 purported to be under Section 138 of the Negotiable Instruments Act. He is said to have issued a cheque in favour of the respondent for a sum of ₹ 7,50,000/- on 8.10.2004 which on depositing in the Bank was allegedly returned unpaid. A complaint petition was filed by the respondent contending that the appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case of the accused/petitioner herein that the signed cheque of the accused is misused by the petitioner by filling contents therein after about 5 years. According to the petitioner the cheque is of the year 1999 and the complainant has filled up the cheque by dating the said as 9.10.2004. Hence to ascertain the age of the cheque, the application came to be filed by the petitioner which is rejected. The evidence of DW-2, the Assistant Manager of UCO Bank, Jayanagar Branch, Bangalore coupled with the recital of Ex.D-11 i.e. the register pertaining to issuance of cheque book disclosed that the cheque containing Ex.P-2 (cheque leaf) was issued by the UCO Bank to the accused on 6.5.1997. If it is so, ascertaining the age of the cheque doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is granted, inter alia, to complete an incomplete negotiable instrument. The provision has a rider, namely, no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid therein. 7. 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 fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 10. However, it is not necessary to have any expert opinion on the question other than the following: Whether the writings appearing in the said cheque on the front page is written on the same day and time when the said cheque was signed as T.Nagappa on the front page as well as on the reverse, or in other words, whether the age of the writing on Ex.P2 on the front page is the same as that of the signature T.Nagappa appearing on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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