TaxTMI 
TaxTMI 
2022 (9) TMI 422
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....e to the hand writing expert for opinion in view of specifc defence raised by the petitioner that cheque in dispute signed by him but blank was lost alongwith important documents and he has given instructions to his banker to 'stop payment'. 3. Learned Magistrate was pleased to reject both the applications by common order dated 9.3.2022. That order was challenged by the petitioner before the Additional Sessions Judge, Aurangabad vide criminal revision application no.94 of 2022. The learned Additional Sessions Judge, Aurangabad was pleased to dismiss the criminal revision application vide judgment and order dated 9.6.2022. 4. In the above premise, the petitioner has challenged the orders passed by the Courts below. 5. Heard Mr. L.D.Vakil, learned counsel for the petitioner and Mr. Bhandari, learned counsel for the respondent. 6. Mr. Vakil, learned counsel for the petitioner vehemently submitted that, it is right of the petitioner/accused to have a fair trial. It is for the petitioner/accused to lead defence evidence in view of his defence and the Court has no role to play in that respect. It is the defence of the petitioner since beginning that cheque in dispute was lost, which ....
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....y Mr. Vakil, learned counsel for the petitioner. He submitted that, there cannot be any dispute about the legal position regarding the right of the accused to have a fair trial. He submitted that, the conduct of the petitioner/accused needs to be considered. He submitted that private complaint under section 138 of the said Act came to be fled against the petitioner/accused in the Judicial Magistrate First Class, Court on 5.7.2016. According to the object of the said Act, case of dishonour of cheque shall be disposed off within six months. He submitted that respondent/complainant is fghting with this litigation since more than 5 years. He invited my attention to the order passed by the learned Magistrate and pointed out as to how the petitioner/accused has delayed the trial by one way or the other. He submitted that, the applications moved by the petitioner were not bonafde and Courts below have rightly rejected the prayer made by the petitioner by reasoned order. He, therefore, urged to dismiss the petition. 10. There cannot be any two opinions about the right of an accused to have a fair trial. The accused has a right to defend himself as a part of his human as well as fundamenta....
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.... jealous in seeing that there is no breach of them" 13. Why I have given the above said factual aspects of various stages of the trial of a dishonour of cheque with dates, reason is, to fnd out whether the applications given by the petitioner/accused before the learned Magistrate vide exhibit 76 and 77 are bonafde and secondly, whether that prayer is relevant in order to have a just decision of the case. 14. In Kalyani Bhaskar Vs. M.S. Sampoornam (supra), the Apex Court has held in paragraph no.12 as under :- "12. Section 243 (2) is clear that a Magistrate holding an inquiry under the Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert 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 ....
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....C No.5349 of 2016. 5.7.2016 ii Date of issuance of cheque. 7.6.2016 iii Date of demand notice. 17.6.2016 iv Examination-in-chief affdavit submitted by the complainant. 19.08.2017 v Cross examination of the complainant concluded. 20.12.2017 vi Examination of accused under section 313 of Cr.P.C. 20.3.2019 vii Examination-in-chief on affdavit fled on behalf of the petitioner/accused. 22.4.2019 viii Further, examination-in-chief of 27.6.2019 the petitioner/ accused before the Court. ix Cross examination of the petitioner / accused commenced and concluded. 22.7.2019 x Defence witness no.1 examination by the petitioner 18.9.2019 xi Adjournment taken by the petitioner to adduce further defence evidence. 29.10.2021, 21.11.2021, 13.12.2021 and 18.12.2021 xii The learned Judicial Magistrate First Class, Passed the order of closure on defence evidence. 18.12.2021 xiii The application for setting aside the evidence defence closure the order passed by the Judicial Magistrate First Class. 21.2.2022. xiv Application for direction to send the cheque in dispute to hand writing expert for opinion 21.2.2022 xv Common order ....
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....tely, the learned Magistrate was constrained to pass the order to close defence evidence on 18.12.2021. 20. The applications vide exhibit 76 and 77 came to be fled on 21.2.2022 after lapse of two months. If this factual aspect is taken into consideration, it is diffcult to accept that the applications moved on behalf of the petitioner's vide exhibit 76 and 77 were bonafde, it was one more attempt made by the petitioner to prolong the trial by taking undue advantage of the provisions. Learned Magistrate has rightly considered this aspect more particularly in the impugned order paragraph no.12. In the above scenario, it is very much clear that more than suffcient opportunities were given to the petitioner to lead his defence evidence. There was no denial of opportunity. It is rightly observed by the learned Magistrate that the petitioner/accused cannot be allowed to harass the complainant under the guise of fair trial for the accused. I fully endorse the view taken by the learned Magistrate in this regard. 21. Now coming to another aspect whether it is really necessary to forward the cheque in dispute to the hand writing expert for opinion. The learned Magistrate has also recor....