TMI Blog2009 (7) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the year 2004. The complaint petition was filed in the year 2004. The complainant examined his witnesses in between the period September 2006 and February 2007. Appellant examined his own witnesses. They had been cross-examined. The learned Magistrate noticed that even the legal notice served upon him was not accepted by the appellant. The court, in the aforementioned situation, held that the gap between execution of two signatures is such where some variance is possible. Rightly or wrongly, his application was dismissed by an order dated 07th April 2007. Immediately thereafter another application was filed on 20th June 2007 which was not maintainable as allowing the same would have amounted to recall of an order passed by the learned Magistrate himself being impermissible in law. In the latter application only the document which was to be sent for comparison was changed. Evidently, he had filed two successive applications; the second application was, thus, not maintainable. This itself goes to show that he intended to delay the disposal of the matter. He could have examined his own expert. He may still do so for which, we are sure, the court shall grant him reasonable opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had executed one pronote on 21st October 2002 for a sum of Rs. 5,00,000/- (Rupees five lacs). It was also alleged that he also issued a cheque bearing No. 400707 on 25th October 2004 for another sum of Rs. 6,00,000/- (Rupees six lacs) purportedly in favour of the 1st respondent drawn on State Bank of Hyderabad, Suryapet Branch. The said cheque, according to the said respondent, when presented before the bank for having been honoured, was returned with the remarks `Insufficient Funds'. 5. Appellant contended that the said pronote as also the cheque were forged and fabricated. He also denied and disputed execution of the said cheque. He, therefore, filed an application for examination of the said pronote as also the cheque, which were marked as Exs.P-1 and P-2 respectively, by a handwriting expert. The said application, being Crl.M.P. No. 757 of 2007 in C.C. No. 77 of 2005, however, was dismissed by an order dated 07th April 2007 by the learned 1st Addl. Judicial Magistrate, relying on a decision of the High Court of Andhra Pradesh being Renu Devi Kedia v. Seetha Devi reported in AIR 2005 AP 180 : 2004 (6) ALT 429 and another decision reported in 2005 (1) ALD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that Ex.D1 does not relate to Exs.P1 P2 and, therefore, the same cannot be taken as an admitted documents for comparison of the signatures of the petitioner. 7. Revision application filed by the appellant there against has also been dismissed by the High Court by a separate order passed on the same date, viz., 22nd August 2007 in Crl.Revision Case No. 995 of 2007 which has also been challenged by the appellant by filing a separate Special Leave Petition being S.L.P.( Crl.) No. 6838 of 2007. 8. Mr. C. Mukund, learned Counsel appearing on behalf of the appellant would submit that having regard to the fact that the accused is entitled to a fair trial, his application for examination by an expert within the meaning of Section 45 of the Indian Evidence Act, 1872 for the purpose of establishing that a document, whereupon the prosecution rests its case, being not genuine, the court was under a constitutional obligation to ensure that he is permitted to take all defences. Strong reliance in this behalf has been placed on judgments of this Court in the case of Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258 : (2007) 2 SCC 258 and in the case of T. Naga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the 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 or procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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