TMI Blog2015 (12) TMI 1876X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court to summon such witnesses. A Court of Law cannot avoid /shirk the duty unless it considers that such petition ought to be refused for any of the reasons mentioned in the sub-section, in the considered opinion of this Court. It cannot be gainsaid that what must be the nature of evidence to be adduced by a person/accused should be left the discretion of a party/accused and the same should not be left within the ambit of a Court. Also, it cannot be frightened that the right of an accused to lead evidence in his defence is not absolute. Notwithstanding the presumption that can be raised under Section 118 (a) or 139 of Negotiable Instruments Act, 1881, an opportunity of rebuttal must be granted to an accused for adducing evidence to discharge it. This Court taking note of the peculiar facts and circumstances of the present case and also this Court bearing in mind a prime fact that a Court of Law is to consider an application filed by the Petitioner/Accused praying for comparison of a signature on a disputed document with her admitted signature on its own merits and if an opportunity is granted to the Petitioner/Accused to substantiate her case, then no prejudice would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercising the procedural facility enunciated under Criminal Procedure Code, contending that the common order dated 25.02.2015 in Cr.M.P.Nos.8882 and 8885 of 2014 is against Law and also in negation of the material facts available on record and as such, the same is liable to be set aside in the interest of justice. 4. The Learned Counsel for the Revision Petitioner (in both the Revisions) urges before this Court that the trial Court had committed an error in making an observation that 'Defence of Forgery' was not taken at the earliest point of time, as the Revision Petitioner had not issued any reply to the statutory notice issued by the Respondent/Complainant, after the dishonour of cheque and further that, the Petitioner was estopped from taking such a defence at a later stage. 5. The stand of the Revision Petitioner (in both the Revisions) is that the signature in the cheque dated 09.10.2011 for Rs.3 lakhs and the signature in the cheque dated 17.11.2011 for Rs.1,67,100/- do not belong to her and that they were all created by the Respondent/Complainant and therefore, the signatures found in the two cheques must be sent for comparison with her admitted signatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 SCC2 58: (2007) 2 SCC 258 and in the case of T. Nagappa v. Y.R. Muralidhar, AIR 2008 SC 2010 : (2008) 5 SCC 633 . We may place on record that in spite of service no one has entered appearance on behalf of respondent No. 1. 9. Indisputably, an accused is entitled to a Fair trial which is a part of his fundamental right as guaranteed under Article 21 of the Constitution of India. The concept, however, cannot be put to a straight jacket formula. A court of law will have to consider each application filed by an accused praying for comparison of his signature on a disputed document with his admitted signature on its own merits. No hard and fast rule can be laid down there for. 10. The Learned Counsel for the Petitioner cites the decision of Honourable Supreme Court (T. Nagappavs. Y.R. Muralidhar) reported in AIR 2008 (SC) 2010, wherein, it is among other things observed that, 'Even in case of availability of legal presumption, an opportunity must be granted to an accused for add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable. 12. Conversely, it is the contention of the Learned Counsel for the Respondent/Complainant that the common order dated 25.02.2015 in Cr.M.P.Nos.8882 and 8885 of 2014 passed by the Learned Judicial Magistrate, Thuraiyur in dismissing the petitions assigning reasons thereto is a legally valid one, because of the reason that the Revision Petitioner/Accused had not taken diligent steps in not paying the witness batta to the concerned witnesses, when the application for issuing summons to the witnesses viz., (1) Baskar, (2) Dhandapani @ Senthil (3) The Manager, Namakka I.D.B.I Branch Manager was allowed by the trial Court and when witnesses batta was not paid under evidence of Petitioner/Accused was closed on 11.06.2014 and further, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truments Act includes a presumption that there exists a legally enforceable debt or liability relies on the decision of Honourable Supreme Court (Rangappa vs. Sri Mohan) reported in 2010 (11) SCC 441 at special Page 442, wherein it is observed as follows: The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course int he nature of a rebuttable presumption and it is open to the accused to raise a defence where in the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an Initial presumption which favours the respondent complainant. 16. It is to be borne in mind that failure to give effect to the letter and spirit of Section 243 of Cr.P.C., would be an illegality besides vitiating the hole proceedings. If an accused desires to obtain an expert's opinion in defence he can make it available and may, if necessary examine the expert. For the purpose he seeks its aid. Ultimately, it is for the trial Court to say whether it should sailed or not to sail with an expert opinion. The right conferred under Section 243(2) of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be caused, this Court comes to an irresistible and inevitable conclusion that the view taken by the trial Court in the common order dated 25.02.2015 that the Petitioner/Accused had filed Crl.M.P.Nos.8882 and 8885 of 2014 only with a view to protract the proceedings of the main case etc., are not legally tenable in the eye of Law. 20. As such, this Court is left with no option, but to interfere with the said common order of the trial Court dated 25.02.2015 passed in Cr.M.P.Nos.8882 and 8885 of 2014. Consequently, the Criminal Revision Petitions succeed. 21. In the result, the Criminal Revision Petitions are allowed and the common order dated 25.02.2015 passed by the learned Judicial Magistrate, Thuraiyur, Trichy in Cr.M.P.Nos.8882 and 8885 of 2014 is hereby set aside by this Court for the reasons assigned in the present Criminal Revision Petitions. The Learned Judicial Magistrate, Thuraiyur, Trichy is directed to take on his file the Cr.M.P.Nos.8882 and 8885 of 2014 and to pass a reasoned, speaking order afresh in a diligent and dispassionate manner, of course after providing due opportunities to the respective parties. The fresh orders in Cr.M.P.Nos.8882 and 8885 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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