Abhishek vs Ramesh

Hon''ble Smt. Shubhada R. Waghmare, J.—Brief facts of the. Controversy involved u/s 482 of the Cr.PC is that the applicant Abhishek was being proceeded against for offence u/s 138 of the Negotiable Instruments Act. The applicant had moved an application for adducing the opinion of the handwriting expert regarding signature on the cheque and the applicant has been dismissed by the ACJM, Indore by impugned order dated 15-9-2011 passed in Criminal Complainant No. 2154/2009 and hence the present application. Counsel for the applicant has relied on T. Nagappa Vs. Y.R. Muralidhar, 2008 (2) DCR 634, whereby the apex Court has held that liberty 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 reasonably opportunity to discharge the same. Counsel submitted that stay has been granted by this Court on 15-11-2011 and she prayed for allowing the present application.

Counsel for the respondent has opposed the stay granted earlier on 15-11-2011. He has submitted that the trial is unnecessarily protracted at the fag end. He further submitted that the stay has been granted since the accused had disputed the signatures on the cheque. Whereas there was clear admission that the signature has been made by him. Hence, Counsel has prayed for dismissal of the application.

At this juncture, Counsel for the petitioner has pointed that there was some typographical error in the stay order. The accused has not disputed the signature on the cheque. It is the admitted fact that the accused has been given blank and signed cheque and never disputed the loan amount of Rs. 20,000/- which is the outstanding amount to be paid by him to the complainant. Counsel further relied on Mrs. Kalyani Baskar Vs. Mrs. M.S. Sampoornam, 2007 (1) DCR 168, whereby the Apex Court has categorically considered the scope of powers of Magistrate for sought expert opinion after evidence of prosecution was rejected and the Apex Court had directed that fair trial includes fair and proper opportunities allowed by law to prove the innocence of the accused. And adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial.

On considering the above submissions, I find that no fault can be found in the stay granted earlier by this Court. In fact, the accused is expected to adduce evidence in rebuttal to discharge the burden. Hence, considering the facts and circumstances of the case since the blank cheque was issued according to the accused an opportunity must be given to him in the principles of natural justice. In this light, I find that the dispute pertains to only protraction of the trial and hence, the application is allowed and the impugned order is hereby set aside. It is directed that the accused applicant shall be given an opportunity to adduce the opinion of the hand writing expert at his own expense without wasting any further time. The Trial Court is directed to complete the entire exercise within a month from today.

The application is therefore, allowed to the extent herein above indicated.

C.c. today.