TaxTMI 
TaxTMI 
2022 (7) TMI 136
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....l of opportunity of defence and fair trial. Mr. Jadeja stated that the petitioner accused was duped by his friend in collusion with the complainant of complaint filed under Section 138 of the NI Act. The petitioner submits that the complainant had alleged that the petitioner became his friend through one Amratbhai Gopalbhai Patel and under the friendship, the present petitioner had demanded an amount of Rs.10 Lacs, which, he had assured to return within a year. Since he had failed to return the money that was lent by the complainant to the present petitioner, the petitioner gave him a cheque dated 25.10.2018 and informed him to deposit the same day so that he would get his money so noted in the cheque. On deposit of the cheque, it got returned with the endorsement of "Account closed" and therefore, the complainant issued Notice to the petitioner and lodged the complaint. 3. Mr. Jadeja submitted that the petitioner denied the charge and therefore, the trial Court proceeded to adjudicate the matter. During the course of trial, the petitioner gave an application Exhibit-32 for Hand-writing expert's opinion qua the ageing of ink and writing on the cheque as well as opinion of Hand-wri....
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.... a complaint under Sections 406, 420, 506(2) and 114 of IPC by making respondent No.2 and his partner - Amratbhai Gopalbhai Patel as accused wherein, the said complaint culminated into proceedings under Sections 107 and 115 of Cr.P.C. Mr. Jadeja stated that the statement of Amratbhai Gopalbhai Patel and the complainant, present respondent No.2, was recorded by the police, which also supports the fact that cheque was given by the petitioner to Amratbhai Gopalbhai Patel in the year 2011. 8. Learned advocate Mr. Harsh Khemka for respondent No.2 contended that the Sessions Court while rejecting the revision application has considered the provisions of Sections 20 and 87 of the NI Act, which lays down the presumption that signature is to be believed and therefore, it considered the submissions of the complainant and found no reasons to send the disputed cheque to F.S.L. for Hand-writing expert's opinion. He submitted that the trial Court has observed in the order that the signature is admitted by the accused and the complainant has admitted about his filling up of the body of the cheque and has observed that the ink may be of the manufacturing year but would have been used on the day w....
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....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 Code of Criminal Procedure, which reads as under : "Section 243 Evidence for defence. (1) (2) If the accused, after he had 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 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....
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....gainst 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 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." 11. The decision rendered in Kalyani Baskar v. M.S. Sampoornam (supra) was followed in the case of T. Nagappa v. Y.R. Muralidhar (supra). In the present case, in his complaint filed under Section 138 of the NI Act, the complainant has stated that the accused had given him the disputed cheque with his signature on it and had informed him that if the cheque is deposited on the date so mentioned, he would receive the a....