Abhishek Dubey vs Rajesh Dubey

This petition under section 482 of the Cr.P.C. has been preferred on behalf of the applicant against the impugned order dated 13.10.2016 passed by the learned J.M.F.C. Devri, District Sagar, in Complaint Case No.875/2014 under section 138 of the Negotiable Instruments Act, whereby the learned Magistrate has rejected the application under section 45 of the Evidence Act for permission to adduce evidence of handwriting expert and ink examiner to prove the age of the signature of the applicant on the cheque in question.

Learned counsel for the applicant submitted that the approach of the learned court below is against the facts and circumstances of the case. After getting notice from the complainant the applicant has replied to the notice wherein it is categorically stated that the disputed cheque was not given to the complainant. The disputed cheque was given by the applicant to the Bank in the year 2011 for the purpose of issuing the Bank Guarantee in connection with his contract related to construction, by simply M.Cr.C.No.18948/2016 putting signature on the cheque. Later on, the cheque was not returned by the Bank and it is received by the partner of the applicant and with the connivance of his partner the complainant has misused the cheque and filed fabricated complaint. It is further submitted that the signature on the cheque was made on 12.3.2011 and the case of the complainant is that it was issued by the applicant on 10.2.2014; therefore, the age of the signature and age of the date and name of the payee are required to be examined by the handwriting expert. Apart from it, the letters of the Bank concerned discloses the fact that the disputed cheque was received in the year 2011 by the Bank and there is no record regarding return of the cheque and payment of cheque was stopped on 4.6.2013 on the request of the applicant.

Having considered the arguments advanced by learned counsel for the parties and on perusal of record it is evident that in the trial at the stage of defence, applicant prayed for the aforesaid permission which has been rejected by the impugned order stating that because the applicant accused has admitted his signatures on the cheque, therefore, there is no need for examination of the age of the signature by the handwriting expert. The application is intended to cause delay.

In the light of the aforesaid facts and circumstances of the case, the applicant''s defence is most probable and he has a right to adduce evidence to prove his aforesaid defence. The accused has a right to fair trial and it is also his 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 a part of fair trial and this right has been recognized by the Parliament in terms of (2) of section 243 of the Cr.P.C. which reads as under :-

"243. Evidence for defence (1)----- (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross- examination, or the production of any document or other thing, the Magistrate shall M.Cr.C.No.18948/2016 issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross- examined or had the opportunity of cross- examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice".

The learned Magistrate has rejected the prayer of the applicant only having regard to the fact that the applicant has admitted his signatures on the disputed cheque. This admission should be considered with other circumstances of the case and every admission should be seen in totality of the statement of admission, and not in an isolated form. The application of the applicant is bonafide. However, it could be filed earlier without delay. But, when the case is pending and whole defence of the applicant is based on the aforesaid facts and circumstances then, in the interest of justice, opportunity should be given to the applicant to adduce the relevant evidence. So far as delay is concerned, it may be compensated by cost for inconvenience caused to the complainant. But, for that reason, rejection of the aforesaid prayer amounts to miscarriage of justice and denial of ensuring fair trial.

In view of the aforesaid discussion, the impugned order dated 13.10.2016 passed by JMFC Devri, District Sagar, is set aside and the learned trial court is directed to provide opportunity to the applicant to adduce evidence on the aforesaid point in the exercise of right of defence in accordance with law.

With the aforesaid, this petition stands allowed and disposed of.