JUDGMENT : J.B.PARDIWALA, J. 1. By this application under Article 227 of the Constitution of India, the applicant original accused calls in question the legality and validity of the order dated 19th August 2015 passed by the Additional Sessions Judge, City Sessions Court, Ahmedabad in the Criminal Revision Application No.217 of 2015, by which the Revisional Court rejected the revision application filed by the applicant herein, thereby affirming the order passed by the Additional Chief Metropolitan Magistrate (Negotiable Instruments), Court No.36, Ahmnedabad dated 17th April 2015 below Exhibit: 28 in the Criminal Case No.1119 of 2013. 2. The facts giving rise to this application may be summarised as under: 2.1. The respondent No.1 has filed a complaint against the applicant herein in the Court of the Additional Chief Metropolitan Magistrate (Negotiable Instruments), Court No.36, Ahmedabad for the offence of dishonour of cheque punishable under Section 138 of the Negotiable Instruments Act. The complaint filed by the respondent No.1 has culminated in the Criminal Case No.1119 of 2013. 2.2. It appears that the complainant has closed his evidence. Thereafter, the further statement of the applicant – accused was also recorded by the Trial Court. At that stage, the applicant herein preferred an application Exhibit: 28 before the Trial Court stating that he intends to examine himself and five defence witnesses. The Trial Court partly allowed the application Exhibit: 28. The Trial Court permitted the applicant to enter the box and lead his own evidence and examine himself. The Trial Court also permitted two defense witnesses to be examined i.e. the Bank official of the complainant's bank and the bank official of the bank in which the accused has his account. However, the request of the applicant to examine one Sabirbhai Habibbhai Mansuri and the bank official of the Bank of India, Sarkhej Branch (bank of the complainant), was declined. 2.3. The applicant, being dissatisfied with the order passed by the Trial Court below Exhibit: 28, challenged the same before the City Sessions Court at Ahmedabad by filing the Criminal Revision Application No.217 of 2015. The said revision application came to be rejected by the Revisional Court vide order dated 19th August 2015. 3. Being dissatisfied with the order passed by the Revisional Court, the applicant is here before this Court with this application under Article 227 of the Constitution of India. 4. Mr. The said revision application came to be rejected by the Revisional Court vide order dated 19th August 2015. 3. Being dissatisfied with the order passed by the Revisional Court, the applicant is here before this Court with this application under Article 227 of the Constitution of India. 4. Mr. Bharda, the learned counsel appearing for the applicant submitted that both the Courts below committed a serious error in passing the impugned orders. He submitted that the right of the accused to adduce evidence of his choice is a part of fair trial. The learned counsel submitted that the right of the Court to deny an opportunity for defence evidence is limited to the cases here it is satisfied, for reasons to be recorded in writing, that the application is made for the purpose of vexation or delay or for defeating the ends of justice. According to the learned counsel, when the Trial Court thought fit to permit the bank officials of the concerned bank with which the applicant and the complainant maintain their accounts as the defence witnesses, then in such circumstances, there was no good reason for the Trial Court to decline the examination of two other persons as the defence witnesses i.e. Sabirbhai Habibbhai Mansuri and the bank official of the bank with which one Soheb Sehbaz Shaikh maintains his account. 5. The argument of the learned counsel is that as the Trial Court thought fit to allow application Exhibit: 28 in part, the same is suggestive of the fact that the Trial Court is not of the view that the application has been filed only with a vie to protract the trial. The learned counsel would submit that the Trial Court has gone into the issue of relevancy of the evidence of the two defence witnesses, who have not been permitted to be examined. 6. In such circumstances referred to above, the learned counsel appearing for the applicant prays that there being merit in this application, the impugned orders be quashed and the application be allowed. 7. On the other hand, this application has been vehemently opposed by Mr. Ansari, the learned counsel appearing for the original complainant. According to Mr. Ansari, no error, not to speak of any error of law could be said to have been committed by the Courts below in passing the impugned orders. 7. On the other hand, this application has been vehemently opposed by Mr. Ansari, the learned counsel appearing for the original complainant. According to Mr. Ansari, no error, not to speak of any error of law could be said to have been committed by the Courts below in passing the impugned orders. No interference is warranted at the end of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 8. The learned counsel appearing for the complainant would submit that it is within the discretion of the Trial Court whether the accused should be permitted to examine his defence witnesses or not. It is not the absolute right of the accused. 9. In such circumstances referred to above, the learned counsel appearing for the complainant submitted that there being no merit in this application, the same be rejected. 10. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Courts below committed any error in passing the impugned orders. 11. I take notice of the fact that the Trial Court passed the impugned order dated 17th April 2015. The revision application came to be rejected on 19th August 2015. This application has been filed almost after a period of more than two years. I inquired with the learned counsel appearing for the applicant as to why there is a delay of two years in filing this application. According to the learned counsel, past almost two years, the Trial Court is not available. As there was no further progress in the criminal case on account of the non-availability of the Court, there has been no further development. The learned counsel, however, conceded that there is a delay. However, according to the learned counsel, having regard to the importance of the issue, this application may not be rejected only on the ground of delay. 12. The right of the accused to adduce evidence of his choice is a part of fair trial. Whether it be sessions trial, trial of a summons case, warrant case or summary trial, that right is there when it comes to the stage of adducing defence evidence. It is a right of the accused, at the appropriate time, to be called upon to enter his defence. Whether it be sessions trial, trial of a summons case, warrant case or summary trial, that right is there when it comes to the stage of adducing defence evidence. It is a right of the accused, at the appropriate time, to be called upon to enter his defence. So far as the sessions trials are concerned, there is Section 233 of the Cr.P.C. and in trial of warrant cases, there is Section 243 of the Code of Criminal Procedure. In a case triable as summons case, if the Magistrate does not convict the accused under Sections 252 or 253 of the Cr.P.C., he has to hear the prosecution and take all such evidence as may be produced in support of the prosecution. He has also to hear the accused and take all such evidence as he produces in his defence. Section 254(2) of the Cr.P.C. provides that the Magistrate may, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. The discretion is certainly vested with the Magistrate to consider whether the witnesses cited by the accused should all be examined. In a case where the Magistrate finds that the witness schedule has been filed with the sole purpose of delaying the proceeding or that no meaningful purpose would be served by the examination of the witnesses, it is open to him to decline the request for summoning the witnesses. 13. Section 254 of the Cr.P.C. reads as under: “254. Procedure when not convicted. - (1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) A Magistrate may, before summoning any witness on such application require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.” 14. (3) A Magistrate may, before summoning any witness on such application require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.” 14. The power under Section 254(2) conferred on the Magistrate is of wider amplitude than that of the Sessions Judge or Magistrate in a similar situation while tying a sessions case or a warrant case. Section 233(3) relates to a situation where the Accused in a sessions case wants to adduce defence evidence or to produce any document or thing. Subsection (3) enables the Judge to issue process. Of course, it is with a rider. The Sessions Judge can refuse to issue process if he finds that the witness list is filed for the purpose of vexation or delay or defeating the ends of justice. Section 243(2) provides that in a case tried as a warrant case the Magistrate can reject the application filed by the Accused for issuing process for compelling the attendance of any witness or the production of any document or thing, if he finds that the application is made for the purpose of vexation or delay or for defeating the ends of justice. Under Sections 233(2) and 243(2) the power of the Sessions Judge and Magistrate to refuse issuance of process is circumscribed by the three factors mentioned specifically viz. vexation, delay or defeating the ends of justice. Thus, in cases not coming under any of the above categories the Sessions Judge or the Magistrate in a trial of warrant cases will have to issue process to the defence witnesses. So far as Section 254(2) is concerned there is no such limitation. Thus, it can be seen from a reading of Sections 233(2), 243(2) and 254(2) that the Magistrate's discretion as to allowing or refusing an application either by the prosecution or by the accused for issuing the summons to any witness directing him to attend or to produce any document before the Court is wider so far as the trial of summary cases is concerned. But that does not mean that the Magistrate can act arbitrarily, whimsically or capriciously. It has to be considered on the facts and circumstances of each case. It may not be possible to enumerate in what circumstances the Magistrate can issue process for examining the defence witnesses and in what circumstances he should not do it. But that does not mean that the Magistrate can act arbitrarily, whimsically or capriciously. It has to be considered on the facts and circumstances of each case. It may not be possible to enumerate in what circumstances the Magistrate can issue process for examining the defence witnesses and in what circumstances he should not do it. The Magistrate will have to assess the over all situation in any case particularly bearing in mind the onus of proof. In other words, the Court should not scuttle the defence evidence on flimsy grounds. If the Magistrate finds that the witnesses cited have nothing relevant to testify before the Court or if he finds that the witnesses are merely cited with the ulterior motive to dodge the proceedings, he can refuse to act. 15. The right of the accused to have his witnesses examined or to have documents produced on his side cannot be denied. The general rule is that an opportunity should be afforded to the accused to adduce his evidence. But he cannot have unfettered liberty to prolong the proceedings by adopting delaying tactics. It is always open to the Magistrate to put a stop to it. But in a case where the burden is on the accused, as in this case, the attempt of the accused to establish his innocence by defence evidence should not be thwarted. The applicant is facing prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. Section 139 of the N.I. Act provides for presumption in favour of the holder. Section 139 of the N.I. Act reads as under:- “139. Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability. Defence of misuse of cheque by complainant. Rejection of application to call for expert opinion, in light of presumption raised u/Ss. 20 and 139 of Act of 1881 is improper. Opportunity must be granted to accused for adducing evidence.” 16. The plain reading of Section 139 of the N.I. Act referred to above would indicate that there is a legal presumption that the cheque was issued for discharging the antecedent liability and that presumption can be rebutted only by the person, who draws the cheque. 17. Opportunity must be granted to accused for adducing evidence.” 16. The plain reading of Section 139 of the N.I. Act referred to above would indicate that there is a legal presumption that the cheque was issued for discharging the antecedent liability and that presumption can be rebutted only by the person, who draws the cheque. 17. The aforesaid presumption is in favour of the holder of cheque. After all, a presumption is only for casting the burden of proof as to who should adduce evidence in a case. The presumption available under Section 139 can be rebutted by the accused by adducing evidence. So, the burden of proof is on the accused and the evidence available on record will have to be appreciated by bearing in mind the fact regarding the burden of proof. 18. In such circumstances, the Court should permit the accused to lead appropriate evidence for the purpose of deciding that burden. This one important aspect should be kept in mind by the Trial Court while conducting a criminal case for the offence of dishonour of cheque punishable under Section 138 of the N.I. Act. 19. Even in a case where the evidence is strong for the prosecution, the accused is entitled to rebut it by examining his own witness or producing documents which would furnish good material for rebutting the prosecution case. In such a situation that could be proved by the accused only if he is allowed to adduce defence evidence. The Court cannot take an attitude that the evidence so far adduced by the prosecution or the complainant is strong enough to sustain conviction and no purpose would be served by the examination of the defence witnesses or production of documents. It is useful in this context to refer to Ronald vs. State of West Bengal [ AIR 1954 SC 455 : (1954 Cri. L.J 1161)] where the Supreme Court held in para 10 as under:- "Although the evidence on record may tend to establish a strong case against the Accused, he is entitled to rebut and if certain documents would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the witnesses connected with those documents, would deprive the Accused of an opportunity of rebutting it. The Accused cannot be convicted without an opportunity being given to him to present his evidence and if it is denied to him, there is no fair trial and conviction cannot stand. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts should be jealous in seeing that there is no breach of them." 20. In taking the aforesaid view, I am supported by a decision of the Kerala High Court in the case of T.N. Janardhanan Pilial vs. State [1992 Cri. L.J. 436]. I may quote the relevant observations made by the High Court as contained in paras 3, 4 and 6 as under: “3. Right of the accused to adduce evidence of his choice is part of fair trial. Whether it be sessions trial, trial of a summons case, warrant case or summary trial, that right is there when it comes to the stage of adducing defence evidence. It is the right of the accused, at the appropriate time, to be called upon to enter his defence. So far as sessions trials are concerned, there is S. 233 and in trial of warrant cases, there is S. 243 of the Code of Criminal Procedure. It is true that there is slight difference between Ss. 233 and 243. The words "for the purpose of examination or cross-examination" appearing in S. 243 are absent in S. 233. For that reason, the proviso to S. 243 is also absent in S. 233. That does not mean that in a sessions trial, at the stage of defence evidence, accused is not entitled to recall a prosecution witness, who was already examined either for the purpose of cross-examination or for being examined as a defence witness. The omission in S. 233 of the above words appearing in S. 243 is made good by S. 233(1) wherein the accused is given the right to adduce "any evidence he may have in support thereof". So also, S. 233(3) says that if the accused applies for the issue of process for compelling the attendance of 'any witness', the judge shall issue such process. The right is not a mere formality, but it is an essential part of a criminal trial. Every opportunity must be given to the accused to adduce evidence in his defence. So also, S. 233(3) says that if the accused applies for the issue of process for compelling the attendance of 'any witness', the judge shall issue such process. The right is not a mere formality, but it is an essential part of a criminal trial. Every opportunity must be given to the accused to adduce evidence in his defence. It is for the accused and not for the judge to say what evidence or what amount of evidence he thinks of proper to place on record in his defence. 4. Right of the court to deny an opportunity for defence evidence is limited to cases where it is satisfied, for reasons to be recorded in writing, that the 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. Denial of the right of defence evidence is not an irregularity curable u/ S. 465. Even in cases where an accused cross-examined or had the opportunity of cross-examining a prosecution witness, he could ask for examination or cross-examination of that witness at the stage of defence evidence. In such cases, apart from the question of vexation, delay or defeating the ends of justice, court can refuse examination, if it is satisfied that it is not necessary for the ends of justice also. For other reasons, court has no discretion to refuse issue of process to compel the attendance of any witness cited by the accused. The discretion in refusing the chance will have to be exercised judicially for the advancement of justice and fair trial even f cases coming under sub-sec. (3) of S. 233 as well as sub-sec. (2) of S. 243 and the proviso. I am not forgetting the fact that there is some difference in the procedure in the trial of warrant cases where there is a right of further cross-examination.” “6. Further, discretion in denying an opportunity for defence evidence, whether it be on the ground that the purpose of the evidence is vexation or delay or defeating the ends of justice or satisfaction under the proviso that it is not necessary in the ends of justice, will have to be exercised at the time when the application for defence evidence is considered. In this case, Special Judge allowed the application after exercising his discretion and summoned the witnesses. In this case, Special Judge allowed the application after exercising his discretion and summoned the witnesses. The witnesses were present also. Then there is no question of exercising the discretion again after ascertaining for what purpose the witness is going to be examined. That matter had to be considered at the time of ordering the application. The subsequent order amounts to a review of the earlier order, which is not permitted.” 21. I may also refer to and rely upon a decision of the Karnataka High Court in the case of B.M. Arif vs. Boston Tea (India) Limited, Rep. by its Director [2005 Cri. L.J. 375]. The High Court in para 10 observed as under:- “The words, "and also to hear the accused and take all such evidence as he produces in his defence" used in Section 254(1) of the Cr. P. C. makes it clear that the option of producing any defence witness is with the accused. A reading of Sections 254(1) and 315(1) of the Cr. P. C. shows that though an accused is a competent witness, he cannot be called as a witness except on his own request in writing. His failure to give evidence also cannot be made the subject of any comment by any of the parties or the Court. There is also no provision in the Criminal Procedure Code stipulating that when he wishes to appear as a witness, he shall so appear before any other witness has been examined. His application under Section 254(2) of the Cr. P. C. for issuance of a witness summons cannot be rejected on the ground that he may examine such witness after he is examined as a witness for defence. The learned Magistrate was, therefore, not right in declining to grant the prayer of the accused-petitioner.” 22. In Madhu Bansal vs. Dinesh Kumar [1997 Cri. L.J. 2020], a learned Single Judge of the Punjab and Haryana High Court observed in paras 4, 5, 6, 7 and 8 as under: “4. Regarding the second point, (of delay), it will be premature at this stage to say that the application for summoning the defence witnesses is for delaying the proceedings. The accused has a right to examine witnesses in his defence and he cannot be denied the same. 5. Regarding the second point, (of delay), it will be premature at this stage to say that the application for summoning the defence witnesses is for delaying the proceedings. The accused has a right to examine witnesses in his defence and he cannot be denied the same. 5. The next point argued by learned counsel for the petitioner is that no reason has been stated for summoning the witnesses. He has relied on Sub-Section (2) of Section 254 of the Code. The words are "the Magistrate may if it thinks fit . . . . . . . . issue summons to any witness . . . . . . ." (emphasis supplied). Putting emphasis on the word 'may', learned counsel for the petitioner has argued that the Magistrate should have used its discretion and for using its discretion the reasons for summoning the witnesses should have been given. However, Sub-Section (2) of Section 254 of the Code has not to be read in isolation. It has to be read with Sub-Section (1) of that Section. Sub-Section (1) of Section 254 of the Code reads as under : “If the Magistrate does not convict the accused under Sections 252 or 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produced in his defence." (Emphasis supplied) The word shall in Sub-Section (1) of Section 254 of the Code is important and it gives a right to the party to lead evidence. Sub-Section (2) of Section 254 of the Code only specifies for issuing the summons to witnesses. Leading of evidence includes examination of witnesses. Summoning the witnesses is another thing. A witness can be examined even without issuance of summons, if a party keeps him present. However, if a party thinks that it cannot keep the witness ready without summons, he may ask for the summons and, therefore, Sub-Section (2) deals with summoning only and not with the right of the accused to examine the witness. If reasons are not stated in the orders of issuance of summons, the order at the most be said to be irregular and not illegal. 6. The next point argued by learned counsel for the petitioner is that witness mentioned at serial No. 2 has no concern. If reasons are not stated in the orders of issuance of summons, the order at the most be said to be irregular and not illegal. 6. The next point argued by learned counsel for the petitioner is that witness mentioned at serial No. 2 has no concern. Whether any witness has any concern or not, cannot be decided before he is examined and, therefore, this argument does not help the petitioner. 7. In the case of S. M. Basappa v. B. Ananda Rao, 1978 Cri LJ 294 it has been held by the Apex Court that 'it is rather peremptory requirement for a Magistrate under S. 255 to take evidence referred to in S. 254 and such further evidence if any as he may, on his own motion, cause to be produced to find if the accused is not guilty upon such evidence and only, thereafter, he can record the order of an acquittal, and if he does not do so he commits an error of law which need to be corrected by the appellate Court.' That was a case where the complainant had sought an adjournment to produce documentary evidence but the same was rejected by the Magistrate and the evidence was shut out ad the order of acquittal was passed. It can be seen that Section 254 of the Code is not limited to the evidence of prosecution only. It also deals equally with the defence evidence if the accused wants to produce the same. Therefore, the principle laid down in the case of S. M. Basappa v. B. Ananda Rao (supra) clearly goes against the petitioner. 8. It has been held that the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67 : 1983 Cri LJ 159 that the power of the High Court under Section 482 Cr. P.C. being an extraordinary one has to be exercised sparingly.” 23. For the foregoing reasons, I am inclined to accept this application and allow the same. The impugned orders passed by the Courts below are quashed. The Trial Court shall permit the applicant herein to examine: (1) Sabirbhai Habibbhai Mansuri, and (2) the bank official of the Bank of India, Sarkhej Branch in which one Soheb Sehbaz Shaikh has his account. For the foregoing reasons, I am inclined to accept this application and allow the same. The impugned orders passed by the Courts below are quashed. The Trial Court shall permit the applicant herein to examine: (1) Sabirbhai Habibbhai Mansuri, and (2) the bank official of the Bank of India, Sarkhej Branch in which one Soheb Sehbaz Shaikh has his account. The Trial Court shall issue summons to both these witnesses at the earliest and see to it that their evidence is completed in accordance with law at the earliest. 24. With the above, this application is disposed of. Direct service is permitted.