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2022 DIGILAW 122 (UTT)

Digamber Singh Negi v. State of Uttarakhand

2022-05-24

RAVINDRA MAITHANI

body2022
JUDGMENT : Ravindra Maithani, J. The challenge in this petition is made to the followings:- (i) Order dated 29.10.2021 passed in Complaint Case No. 955 of 2021, Padam Datt v. Digambar Singh Negi, by the court of Additional Civil Judge (S.D.) VI/ Additional Chief Judicial Magistrate, Dehradun (“the case”). By the impugned order, the opportunity to adduce defence evidence has been closed; and (ii) Order dated 06.12.2021 passed in Criminal Revision No. 205 of 2021, Digamber Singh Negi v. Padam Datt, by the court of Incharge District Judge, Dehradun. 2. Heard learned counsel for petitioner as well as the learned State Counsel, and perused the record. 3. It appears that the respondent no. 2 (“the complainant”) filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (“the Act”) against the petitioner, which formed the basis of the case. The complaint was filed on 23.03.2015. In the case, on 14.09.2021, the examination of the petitioner under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The petitioner had then stated that he would adduce evidence in his defence. 06.10.2021 was the date fixed for that matter. On 06.10.2021, the petitioner did not appear and an application seeking exemption from personal appearance was filed on his behalf, which was allowed. In fact, the petitioner also sought adjournment on that date, which was also allowed, and 29.10.2021 was fixed for defence evidence. On 29.10.2021 also, the petitioner did not appear. On his behalf, an application for exemption from personal appearance was filed, which was allowed. On 29.10.2021, neither any adjournment application was moved nor any evidence was adduced in his defence by the petitioner. Therefore, the court closed the opportunity to adduce the defence evidence and fixed the case at another stage. This order is impugned. 4. Learned counsel for the petitioner would submit that the petitioner was given only one opportunity on 06.10.2021 to adduce defence evidence. On 29.10.2021, the opportunity to adduce defence evidence has been closed. It is argued that right to fair trial demands that an accused should be given opportunity to adduce defence evidence. 5. In support of his contention, learned counsel for the petitioner has placed reliance on the principles of law as laid down in the case of Mrs. Kalyani Baskar v. Mrs. M.S. Sampooranam, Appeal (Crl.) No. 1293 of 2006. 6. In the case of Mrs. 5. In support of his contention, learned counsel for the petitioner has placed reliance on the principles of law as laid down in the case of Mrs. Kalyani Baskar v. Mrs. M.S. Sampooranam, Appeal (Crl.) No. 1293 of 2006. 6. In the case of Mrs. Kalyani Baskar (supra), the Hon’ble Supreme Court, inter alia, observed as hereunder:- “Section 243 (2) is clear that a Magistrate holding an inquiry under the 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 because even in adopting this course, the purpose is to enable the Magistrate 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 hand-writing 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. 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.” 7. It may be noted that in the case of Mrs. Kalyani Baskar (supra), in a proceeding under Section 138 of Act, an application was moved by the accused in that case requesting the Magistrate to send the cheque in question for expert opinion to ascertain the correctness and genuineness of signature on it. That application was rejected. Under those circumstances, the above observation has been made by the Hon’ble Supreme Court in the case of Mrs. Kalyani Baskar (supra). 8. That application was rejected. Under those circumstances, the above observation has been made by the Hon’ble Supreme Court in the case of Mrs. Kalyani Baskar (supra). 8. Undoubtedly, an accused should be given adequate opportunity for his defence. Denial of opportunity to adduce evidence would definitely go against the spirit of free trial. 9. In the instant case, it cannot be said that the court did not give any opportunity to the petitioner to adduce any evidence. 06.10.2021 was the first date fixed for defence evidence. On that date, the petitioner did not appear. He was represented by his counsel, who sought adjournment and exemption from his personal appearance, which was allowed. 10. Adjournment, at any stage, need to be given due consideration. It may not be allowed on mere asking. In the case of Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 , the Hon’ble Supreme Court deprecated the practice of granting adjournment on the drop of hat. In para 57.1, the Hon’ble Supreme Court observed as hereunder:- “57.1. Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of.” 11. In the instant case, on 29.10.2021, the petitioner did not appear personally. He did not adduce any evidence in his defence and even he did not seek any adjournment. The court, in fact, did not have any reason to adjourn the proceeding at the same stage. The court closed the opportunity of adducing defence evidence by the petitioner and proceeded ahead. It cannot be said that the impugned order is against any provision of law. It cannot be said that the petitioner did not get opportunity to adduce evidence in defence. Opportunity does not mean that it may be unguided. An accused does not have unrestricted rights to adduce evidence as and when he requires. As stated, in the instant case, opportunity to adduce defence evidence was granted to the petitioner. 12. This Court is cautious that the approach of the court in such matter should be realistic. Opportunity does not mean that it may be unguided. An accused does not have unrestricted rights to adduce evidence as and when he requires. As stated, in the instant case, opportunity to adduce defence evidence was granted to the petitioner. 12. This Court is cautious that the approach of the court in such matter should be realistic. But, then what was the option before the court on 29.10.2021? As stated, neither adjournment was moved nor defence evidence was adduced. The only course open was to proceed ahead. That is what the court has done. 13. Interestingly, the things did not stop here. On the next date i.e. on 15.11.2021, again on behalf of the petitioner adjournment application was moved. The petitioner did not apply to the court seeking permission to adduce defence evidence on that date. Even thereafter, again, the petitioner moved another application to get himself examined, which was rejected by the court on 1611.2021 on the ground that the opportunity to adduce defence evidence has already been closed on 29.10.2021. The petitioner would have assigned the reasons for not adducing evidence on 29.10.2021 for consideration of the court below, which the petitioner did not choose. Even it has not been stated before the court as to why the evidence was not adduced on 29.10.2021. Criminal trial cannot be delayed without any reason. 14. In view of the above, this Court is of the view that there is no reason to make any interference and the petition deserves to be dismissed at the admission stage itself. 15. The petition is dismissed in limine.