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2019 DIGILAW 599 (RAJ)

Jabaru Ram v. State of Rajasthan

2019-02-20

PUSHPENDRA SINGH BHATI

body2019
ORDER : PUSHPENDRA SINGH BHATI, J. 1. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. seeking the following relief:- "It is, therefore, most humbly and respectfully prayed that this criminal misc. petition may kindly be allowed and the order-dated 06.12.2018 passed by the learned Additional District & Sessions Judge No. 1, Jodhpur in Criminal Revision no. 87/2018 and the order-dated 25.01.2018 passed by the learned Metropolitan Magistrate No. 9, Jodhpur Metro in criminal case No. 1567/2011 may kindly be quashed and set aside and the application of the petitioner u/s. 45 of the Evidence Act filed before the learned trial court may kindly be allowed." 2. Brief facts of the case are that the respondent no. 2 filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner. During the trial of the case, the present petitioner accused filed an application under Section 45 of the Evidence Act to the effect that the accused had borrowed Rs. 10,000/- from the complainant's cousin Kishore and a blank cheque bearing no. 605116 was given to Kishore and thereafter, cheque has been filled by the petitioner. The said application was rejected by the learned trial Court vide order dated 25.1.2018 and the revision against the said order was also dismissed by the learned revisional Court vide order dated 6.12.2018. 3.1 Learned counsel for the petitioner has tried to make out a case that it was a fundamental right of the petitioner to defend himself and the same cannot be curtained by not sending the cheque to F.S.L. Learned counsel for the petitioner in support of his arguments has relied upon the judgment of Madhya Pradesh High Court in the case of Mohit Sharma. vs. Anil Maheshwari (CRR No. 455/2012) dated 17.3.2017, the relevant para no. 11 whereof read as follows:- "11. The effect of provisions of Section 20 of the Negotiable Instruments Act has been clarified by the Hon. Apex Court in the case of T. Nagappa (supra). The relevant part of the judgment reads as under:- 6. The learned Trial Judge, as also the High Court, in support of their respective orders, have relied upon Section 20 of the Negotiable Instruments Act, which reads as under: "Section 20 - Inchoate stamped instruments. The relevant part of the judgment reads as under:- 6. The learned Trial Judge, as also the High Court, in support of their respective orders, have relied upon Section 20 of the Negotiable Instruments Act, which reads as under: "Section 20 - Inchoate stamped instruments. Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in [India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder." By reason of the aforementioned provision only a right has been created in the holder of the cheque subject to the conditions mentioned therein. Thereby only a prima facie authority is granted, inter alia, to complete an incomplete negotiable instrument. The provision has a rider, namely, no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid therein. 7. When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity 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 an opportunity to discharge it. 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 the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under: "Section 243 - Evidence for defence. The right to defend oneself and for that purpose to adduce evidence is recognized by the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under: "Section 243 - Evidence for defence. (1).-- (2) 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 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 subsection (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 protracting the trial or summon witnesses whose evidence would not be at all relevant. 10. 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. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant. 10. 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. 11. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar v. M.S. Sampoornam (in which one of us, L.S. Panta, J., was a member) wherein it was held : (SCC p. 262, para 12) " Section 243(2) is clear that a Magistrate holding an inquiry under CrPC 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 ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them." In view of the law laid down in the aforesaid case of T. Nagappa (supra) it is crystal clear that rejection of such application only having regard to provisions of Section 20 of the Negotiable Instruments Act is not correct, as 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 conditions as noticed hereinbefore and the accused has constitutional right to adduce evidence in his defence to rebut the case of prosecution and to obtained his defence." 3.2 The learned counsel for the petitioner has also relied upon the judgment of this Court at Jaipur Bench in the case of Rajnarayan Pareek & Anr. vs. State of Rajasthan & Anr. (S.B. Crl. Misc. Petition No. 5852/2017), decided on 20.9.2018, whereby this Court has given liberty to the petitioner therein to get the cheque examined by a private handwriting expert. 4. Learned counsel for the respondent no. 2 vehemently opposes the submissions advanced on behalf of the petitioner and submits that the matter is at the fag end and the application is nothing but a modus operandi to delay the trial. Learned counsel for the respondent no. 2 submits that once the petitioner has admitted the signatures on the cheque, then presumption would be in favour of the respondent no. 2. Learned counsel for the respondent no. 2 further submits that the petitioner had ample opportunity to take his defence and to allow his application at this fag end would delay the trial of the case. The matter is pending for final hearing since 1.12.2017 in a case which was filed on 3.10.2011. 5. After hearing the learned counsel for the parties and after perusing the material available on record, this Court is of the opinion that the precedent law cited by the learned counsel for the petitioner does not apply to the facts in hand. The matter is pending for final hearing since 1.12.2017 in a case which was filed on 3.10.2011. 5. After hearing the learned counsel for the parties and after perusing the material available on record, this Court is of the opinion that the precedent law cited by the learned counsel for the petitioner does not apply to the facts in hand. The learned Court below has rightly followed the precedent law in the case of Jag Bahadur Singh vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No. 2478/2012) decided on 16.1.2013 whereby this Court has categorically ruled that in a complaint under the Negotiable Instruments Act, the complainant merely has to prove the fact that he was given a signed cheque by the accused. Under Section 139 of the N.I. Act, there is presumption that the signed cheque has been given for discharging a liability or a debt. Therefore, whether the cheque was filled in by the petitioner or by the complainant is an immaterial fact. Moreover, this Court finds that the petitioner had ample opportunities to take his defence. The impugned orders passed by the learned Courts below are just and proper and do not call for any interference. 6. In view of the above, the present misc. petition, being devoid of any merit, is hereby dismissed.