TMI Blog2021 (8) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. - CRMP No. 784 of 2017 - - - Dated:- 27-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount in lieu of sale of land. No compromise etc. took place for payment of loss sustained by the complainant to the tune of Rs. 1,60,000,00/-. He has not issued any cheque for payment of aforesaid amount. On the contrary, on 10.05.2014 during traveling from Korba to Katghora by motor-cycle, the petitioner lost his handbag containing various documents alongwith cheque book of HDFC Bank in which some of the cheques were signed and the complainant is misusing the aforesaid signed cheque. The petitioner has lodged report at Police Station- Katghora on 10.05.2014 itself. After receipt of reply, the complainant filed a complaint reiterating the same story as projected in the notice. 5. On the basis of said complaint, the trial Court issued notice to the petitioner. The petitioner then appeared before the trial Court and has stated that he has been falsely implicated in this case, no cheque has been issued to the complainant against any liability. The aforesaid cheque was lost in which, he has only singed the cheque but amount has been written by complainant which is being misused by the complainant. 6. On 15.05.2015, the petitioner moved an application for examination of handwri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties appeared before the trial Court with a prayer that the matter may be listed before Lok Adalat for compromise, but the compromise could not be arrived at between the parties, thereafter, the trial Court fixed the case for considering the application for compromise but for one and another reason, it could not be finalized and on 16.03.2016, opportunity of the petitioner for adducing his defence witnesses has also been closed. 10. Learned counsel for the petitioner would further submit that Petitioner has filed Criminal Revision No. 1200/2016 before this Court, which was dismissed vide order dated 26.04.2017 (Annexure P/14), with liberty granted in favour of the petitioner to prefer a petition before Sessions Judge under Section 397 of the Cr.P.C. against the order dated 30.05.2015 by which application of petitioner to examine the cheque through handwriting expert has been rejected. Thereafter, the petitioner has filed revision petition under section 397 of Cr. P.C registered as criminal revision No.12/2017 mainly contending that the petitioner was under impression that the agreement could have been materialized between them, therefore, he is not required to lead defence w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay. 04.12.17 5 SLP (Crl.) 800/2018 SLP dismissed on the ground of delay. 16.03.18 13. Referring to these aforesaid facts, learned counsel for the respondent would submit that the petitioner has been given ample opportunity by the trial Court, who after giving reasoned order, right of the petitioner to lead evidence has been closed on 16.03.2016 (Annexure P/13), thereafter, he has filed revision petition before this Court bearing CRR No. 1200/2016, therefore, the present application has been filed which has stalled the proceeding before the trial Court. He would further submit that this Court on 05.07.2017 granted interim relief in favour of the petitioner mentioning that no final order be passed against the petitioner till the next date of hearing, as such, the trial Court has not concluded the trial and though the matter should have been dealt expeditiously. It is prayed that the present petition may be dismissed and the trial Court may also be directed to expedite the trial. 14. I have heard learned counsel for the parties and perused the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 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. 19. Hon'ble the Supreme Court in G. Someshwar Rao Vs. Samineni Nageshwar Rao another [(2009) 14 SCC 677], has examined the issue and held as under:- 11. Section 243 of the Code of Criminal Procedure, 1973 provides for grant of an opportunity to the defendant to lead evidence in his defence as also to file a written statement, sub-section (2) whereof reads as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unities 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 them. 12. Kalyani Bhaskar has been followed by this Court in T. Nagappa v. Y.R. Muralidhar [(2008) 5 SCC 633)] 8. 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 Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure..... 15. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the interest of justice would be subserved if an opportunity is granted to the appellant to examine an expert at his own costs. If he requisitions the services of an expert, the learned Judge would grant him an opportunity to examine the disputed documents, submit a report and examine h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected the said revision petition by recording finding that the petitioner has admitted the signature therefore order passed by Judaical Magistrate First Class rejecting application is legal justified, accordingly the revision petition is liable to be rejected with cost of Rs. 500/-. This order has been challenged by the petitioner before this Court, therefore, from the above facts, it has to be seen that the order dated 30.05.2015 is neither stated before this Court or disputed before the Hon'ble the Supreme Court, therefore, validity of the order dated 30.05.2015 and revision No. 21.06.2017 has to be examined by this Court independently considering the factual matrix already taken place in the case of filing various litigation before this Court. 23. Now coming to the facts of the case that the petitioner from the very beginning has raised the contention that the cheque has been misused by the respondent as it has been lost in transit and even in his statement recorded under Section 313 of Cr.P.C. the petitioner in his statement at question has stated in clear terms and even in his reply to the notice dated 29.05.2014 (Annexure P/3) as well as in the application dated 30. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
