Allowed

Anish Sharma v. Ajay Sood and Anr.

Punjab & Haryana HC20 Nov 2012CRM-M/29997/2011

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 Cr.P.C. to quash an order denying the petitioner-accused permission to examine a handwriting expert in a Section 138 NI Act case. The Court held that denying such a right violates the fair trial principle and statutory provisions allowing defence evidence.

What did the court decide?

The impugned order dismissing the application to examine a handwriting expert dated 24.8.2011 is quashed, directing the Trial Court to afford the petitioner a reasonable opportunity to lead defence ev

Anish Sharma Vs Ajay Sood and Anr. — Cheque Dishonour | Punjab & Haryana HC (2012)

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CRM-M No. 29997 of 2011 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-M No. 29997 of 2011 (O&M)

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Date of Decision: November 27, 2012

Anish Sharma

...Petitioner

Versus

Ajay Sood and another

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...Respondents

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CORAM: HON’BLE MR. JUSTICE NARESH KUMAR SANGHI

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Present: Mr. Padamkant Dwivedi, Advocate, for the petitioner.

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Mr. Suveer Sheokand, Advocate, for the respondents.

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NARESH KUMAR SANGHI, J.

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Prayer in this petition, filed under Section 482, Cr.P.C., is for quashing of the order, dated 24.8.2011 (Annexure P-3), passed by the learned Judicial Magistrate Ist Class, Ludhiana, whereby the application (Annexure P-2) filed by the petitioneraccused for permission to examine the Handwriting Expert to prove that Cheque Nos. 141645 and 141646, dated 27.5.2009, were not bearing the signatures of the applicant-petitioner, was dismissed.

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The brief facts of the case are that in order to discharge legally enforceable liability, the petitioner-accused issued two cheques bearing Nos. 141645 and 141646, dated 27.5.2009, for `50,000/- each, drawn on Bank of India, Ludhiana, in favour of M/s Neotech Organic. On presentation, the said

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cheques bounced on the premise "Exceeds Arrangement", vide memo dated 29.5.2009. In spite of receipt of the notice, dated 26.6.2009, the petitioner-accused failed to make the payment and, hence, a complaint was instituted before the learned Area Judicial Magistrate for the offence punishable under Section 138 of the Negotiable Instruments Act.

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The respondent-complainant led his entire evidence and thereafter the petitioner-accused was called upon to make his statement in terms of Section 313, Cr.P.C. Thereafter, the petitioner-accused was called upon to enter into his evidence and he proposed to lead the defence evidence.

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The petitioner-accused moved an application (Annexure P-2) to examine the Handwriting Expert and to allow him to examine the cheques bearing Nos. 141645 and 141646, dated 27.5.2009, and thereafter to examine his admitted signatures and give his report. The said application was dismissed by the learned Trial Court vide order dated 24.8.2011 (Annexure P-3) and, hence, the present petition.

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Learned counsel contended that the learned Trial Court had dismissed the application of the petitioner-accused without adhering to the provisions of Sections 243, 254(2) and 262, Cr.P.C. He further submitted that the findings recorded by the learned Trial Court were contrary to the facts available on record. In fact, the petitioner-accused had taken a specific stand in his statement under Section 313, Cr.P.C., that the impugned cheques did not bear his signatures. To buttress his submissions, learned counsel has referred to the certified copy of the

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statement of the petitioner-accused, recorded under Section 313, Cr.P.C., where to the answer of the last question, he had stated that the cheques (Ex. C-2 & C-3) did not bear his signatures and he had no legal liability to pay the amount of the aforesaid cheques to the complainant. He further submitted that by denying a right of leading the defence evidence, prejudice to the petitioner-accused is writ large. In support of his submission, learned counsel for the petitioner-accused has placed reliance on the judgments of Hon'ble the Supreme Court rendered in the cases of Kalyani Baskar v. M.S. Sampoornam, 2007 (1) R.C.R. (Criminal) 311 , wherein the Hon'ble Supreme Court held that adducing of evidence in support of the defence is a valuable right and denial of the same amounts to denial of fair trial; and T. Nagappa v. Y.R. Muralidhar, 2008 (3) R.C.R. (Criminal) 926 , where

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the Hon'ble Supreme Court held that in a case arising out of Section 138 of the Negotiable Instruments Act relating to dishonour of cheque, the request of the accused to call for the expert opinion should not have been rejected without cogent reasons.

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On the other hand, learned counsel for the respondent-complainant opposed the prayer made by the learned counsel for the petitioner-accused.

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Heard.

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Fair trial includes affording of fair and proper opportunities to an accused to prove his innocence. Adducing of evidence in support of defence is a valuable right. Denial of that right means denial of fair trial. The provisions contained in

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Section 243, Cr.P.C., authorises the defence to make an application for summoning of its witnesses and imposed the duty upon the Court to summon such witnesses. The Court cannot avoid that duty unless it considers that such application should be refused for the reasons specified in sub-section (2) of Section 243, Cr.P.C. As per the provisions, a complaint under Section 138 of the Negotiable Instruments Act, has to be tried summarily. Section 262, Cr.P.C., prescribes that the trials under Chapter XXI of the Code of Criminal Procedure, would be tried by following the procedure of summons case except as mentioned therein. Section 254(2), Cr.P.C., relating to trial of summons cases, prescribes that the Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summon to any witness directing him to attend or to produce any document or other thing. Section 247, Cr.P.C., relating to the trial of cases instituted otherwise than on police report, prescribes that the accused shall then be called upon to enter upon his defence and produce his evidence; and the provisions of section 243 shall apply to the case. Similarly, Section 243, relating to the trial of warrant cases by Magistrates, prescribes that the accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. Sub-section (2) of Section 243, Cr.P.C., further prescribes that 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

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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 - (i) it is made for the purpose of vexation; (ii) delay; and (iii) for defeating the ends of justice. The said ground has to be recorded in writing.

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After analysing the provisions with regard to allowing the accused to lead his defence, it is crystal clear that such right can be denied only when it is exercised for the purpose of vexation, delay or for defeating the ends of justice. The impugned order (Annexure P-3) reveals that the learned Trial Court had dismissed the application on the following two grounds:-

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(i) The accused has taken a contradictory defence in his statement under Section 313, Cr.P.C.; and

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(ii) It is not specified with which standard handwriting, the petitioner-accused wants to compare the handwriting on the cheques.

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In the considered opinion of this Court, both the grounds taken into consideration by the learned Trial Court for declining the prayer of the petitioner-accused to lead defence evidence are not tenable in law. Even otherwise, whatever has been observed by the learned Trial Court while declining the prayer of the petitioner-accused cannot be considered to be sufficient for denying the valuable right of leading defence available to an accused.

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Keeping in view the totality of the circumstances of the case, the provisions discussed herein above, and the right of

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the accused to lead defence evidence, the present petition is allowed and the impugned order dated 24.8.2011 (Annexure P-3), passed by the learned Trial Court, is hereby quashed. The learned Trial Court shall afford reasonable opportunity to the petitioner-accused to lead his evidence.

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Since the present case has arisen out of the alleged violation of the provisions of Section 138 of the Negotiable Instruments Act and is pending since 2009, therefore, the learned Trial Court is directed to conclude the trial as early as possible.

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(NARESH KUMAR SANGHI) JUDGE

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November 27, 2012 PKapoor

Anish Sharma v. Ajay Sood and Anr.

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Anish Sharma v. Ajay Sood and Anr.

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