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Himachal Pradesh High Court · body

2018 DIGILAW 1621 (HP)

Bhoop Ram v. Parminder Singh

2018-09-11

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : Chander Bhusan Barowalia, J. The present revision petition is maintained by the petitioner/accused (hereinafter referred to as “the petitioner”) under Sections 397 and 401 Cr.P.C. against order dated 14.12.2015, passed by learned Judicial Magistrate 1st Class, Solan, in Case No. 475-3 of 2012, dated 14.12.2015, on application filed under Sections 45 to 47 of the Indian Evidence Act. 2. The brief facts, giving rise to the present revision petition, can succinctly be summarized as under: As per the petitioner, he was Ward Member, village Shallot, Sub Tehsil Junga, District Shimla, H.P., and was entrusted with the work of hiring machines for construction of link roads under the Member Parliament Local Area Development Scheme. The petitioner apprised the complainant/respondent (hereinafter referred to as “the respondent”) that he will be paid only after grant is released under the Member Parliament Local Area Development Scheme. Thereafter, the JCB machines of the respondent were hired for construction of the road. Subsequently, the respondent maintained a case against the petitioner under Section 138 of the Negotiable Instruments Act qua cheque No. 0088666, dated 12.07.2012, amounting to Rs.4,00,000/- (rupees four lac). The petitioner again apprised the respondent that he has no personal liability qua the payment for construction of roads and the amount will be paid under the Member Parliament Local Area Development Scheme, through the concerned authorities, i.e., concerned Gram Panchayat. During the pendency of the case before the learned Trial Court, the petitioner moved an application under Section 45, 46 and 47 of the Indian Evidence Act, seeking opinion of the handwriting expert, though it was to be filed under Section 243 Cr.P.C. However, no orders were passed on the application and ultimately on 14.12.2015, the learned Trial Court dismissed the application, hence the present petition preferred by the petitioner. 3. Heard. The learned counsel for the petitioner has argued that the learned Trial Court wrongly rejected the application seeking opinion of handwriting expert. He has further argued that by dismissing the application, which was filed seeking opinion of handwriting expert, the learned Trial Court has curtailed valuable right of the petitioner of “fair trial”. To support his arguments, the learned counsel for the petitioner has placed reliance on the judgment of Hon’ble Supreme Court rendered in T. Nagappa vs. Y.R. Muralidhar, AIR 2008 SC 2010 , wherein, vide para 9, it has been held as under:- “9. To support his arguments, the learned counsel for the petitioner has placed reliance on the judgment of Hon’ble Supreme Court rendered in T. Nagappa vs. Y.R. Muralidhar, AIR 2008 SC 2010 , wherein, vide para 9, it has been held as under:- “9. The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258 (in which one of us, L.S. Panta,J., was a member) wherein it was held: “12. Section 243(2) is clear that a Magistrate holding an inquiry under 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 handwriting expert 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 for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. “Fair trial” includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. “Fair trial” includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to sure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them.” He has further argued that the impugned order is violative of fundamental right engrained under Article 21 of the Constitution. Thus, the impugned order is liable to be set aside. He has argued that the learned Trial Court deprived the petitioner of his valuable right to rebut the cheque, as the cheque, upon which the edifice of the respondent’s case rests, is a strong material for rebutting the case. The learned counsel for the petitioner has prayed that the impugned order be set aside and the prayer for seeking opinion of the handwriting expert be allowed. Conversely, the learned counsel for the respondent has argued that the petitioner has admitted his signatures on the cheque, so no purpose will be served by sending the cheque to hand writing expert. He has further argued that the application seeking opinion of the hand writing expert was filed after closer of the evidence and with a purpose to delay the matter. Lastly, it is prayed that the petition sans merits and the same be dismissed. 4. After carefully considering the overall aspects of the case in hand and the law, as settled in T. Nagappa’s case (supra), this Court does not find that the comparison of the handwriting expert on the cheque will be prejudicial to the respondent and the same, in any manner, will delay the proceedings. The learned Trial Court, by not sending the cheque for opinion of the handwriting expert, has diminished the valuable right of the petitioner to rebut the same. This Court, keeping in eye over the fact that “fair trial” encapsulates valuable right of fair and proper opportunities allowed by the Court to adduce evidence in support of defence and denial of that right indeed is denial of fair trial, deems it fit to allow the present petition. This Court, keeping in eye over the fact that “fair trial” encapsulates valuable right of fair and proper opportunities allowed by the Court to adduce evidence in support of defence and denial of that right indeed is denial of fair trial, deems it fit to allow the present petition. Thus, in view of the above, the petition is allowed and the impugned order is set aside and the application of the petitioner, seeking opinion of the handwriting expert, pertaining to the writing on the cheque, is also allowed. 5. The parties are directed to appear before the learned Trial Court on 26.09.2018. 6. In view of the above, the petition stands disposed of, so also pending application(s), if any.