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Orissa High Court · body

2015 DIGILAW 289 (ORI)

Krushna Chandra Sahu v. State of Odisha

2015-04-25

S.PUJAHARI

body2015
ORDER : This criminal revision has been filed at the instance of the petitioner/accused challenging the order dated 7.12.2013 passed by the learned J.M.F.C., Cuttack in I.C.C. No. 846 of 2005 rejecting the prayer of the petitioner to send the cheque (Exhibit-1) for examination and opinion to prove his defence that the cheque was not given for discharge\of any legally enforceable debt or liability, inqsmuch as according to him the said cheque though signed was blank and given as security to opposite party no. 2 and later on the complainant-opposite party no. 2 by manipulation filled up higher amount and date in the cheque though the petitioner had drawn the cheque; 2. On consent of both the parties, this criminal revision is taken up for disposal at the stage of admission. 3. Learned counsel for the petitioner has submitted that such order of the learned J.M.F.C. Cuttack is unsustainable in the eye of law inasmuch as the petitioner in this case by the aforesaid process has been deprived of the opportunity of defending him. Therefore, exercise of jurisdiction by the learned J.M.F.C., Cuttack being contrary to law and with material irregularity, the impugned order passed is liable to be set aside and the learned J.M.F.C., Cuttack may be directed to send the cheque for expert opinion. 4. Learned counsel for opposite party no. 2 however, has defended the order passed with the submission that evidence on record are sufficient to decide the case one way or the other and the opinion of the expert is not necessary to decide the case, in view of the fact, that accused had admitted his signature in the cheque. Therefore, the impugned order does not require any interference in exercise of revisional jurisdiction, is also the submission of the learned counsel for the opposite party no. 2. 5. Learned counsel for the State appearing for opposite party no. 1 was not heard as the complaint is private complaint. 6. In the case of T.Nagappa vrs. Y.R. Muralidhar : (2008) 5 SCC 633 , Hon'ble Apex Court have held that: " 8 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. 6. In the case of T.Nagappa vrs. Y.R. Muralidhar : (2008) 5 SCC 633 , Hon'ble Apex Court have held that: " 8 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 Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure which reads as thus: 243. Evidence for defence. - (1) xx xx xx xx xx xx" (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 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." 9. What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the Court being' the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the Court for obtaining its assistance with regard to summoning of witnesses, etc. if permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant." 7. if permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant." 7. In this case it appear~ that the petitioner had admitted the fact that a blank cheque was drawn by him in favour of the complainant and he stated that the same was not given in due discharge of legally enforceable debt or liability. According to him, the same can be proved from the fact that the date and amount were not filled up by the present petitioner, but by subsequent manipulation by the complainant. When the drawee of the cheque was admitted though the amount as well as the date were written by some other even if it comes out in the expert examination of the cheque, the same is of no assistance to the present petitioner to prove his defence. The trial Court as such on consideration of the aforesaid, when rejected his prayer in exercise of jurisdiction vested on him under Section 243 (2) of the Cr. P.C. and exercise of such jurisdiction cannot be with material irregularity or contrary to law, moreso when in the facts and circumstances the petition appears to be vexatious and to delay the trial and thereby to defeat the ends of justice and in such circumstances learned J.M.F.C., Cuttack empowered to reject the prayer. Hence, this criminal revision challenging the same is devoid of merit and as such stands dismissed at the stage of admission. Revision dismissed.