The main legal point established in the judgment is the accused's right to have a fair trial and the importance of conducting the trial expeditiously while preventing the accused from unnecessarily protracting the trial.

JUDGMENT :

SHRIKANT D. KULKARNI, J.

1. The petitioner has challenged the common order passed by the learned Judicial Magistrate First Class, Aurangabad below Exhibit-76 and 77 in SCC No. 5349 of 2016 thereby rejecting his prayer for permission to lead further defence evidence and forward the cheque in dispute to the Hand Writing Expert for opinion, which is upheld by the Additional Sessions Judge, Aurangabad in Criminal Revision Application No. 94 of 2022.

2. The petitioner is facing prosecution for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter called as ‘the said Act’ for the sake of convenience). He has applied to the learned Magistrate vide exhibit 76 and sought permission to lead further defence evidence by setting aside the evidence close order. He further applied to the learned Magistrate to forward the cheque in dispute to the hand writing expert for opinion in view of specifc defence raised by the petitioner that cheque in dispute signed by him but blank was lost alongwith important documents and he has given instructions to his banker to ‘stop payment’.

3. Learned Magistrate was pleased to reject both the applications by common order dated 9.3.2022. That order was challenged by the petitioner before the Additional Sessions Judge, Aurangabad vide criminal revision application no. 94 of 2022. The learned Additional Sessions Judge, Aurangabad was pleased to dismiss the criminal revision application vide judgment and order dated 9.6.2022.

4. In the above premise, the petitioner has challenged the orders passed by the Courts below.

5. Heard Mr. L.D.Vakil, learned counsel for the petitioner and Mr. Bhandari, learned counsel for the respondent.

6. Mr. Vakil, learned counsel for the petitioner vehemently submitted that, it is right of the petitioner/accused to have a fair trial. It is for the petitioner/accused to lead defence evidence in view of his defence and the Court has no role to play in that respect. It is the defence of the petitioner since beginning that cheque in dispute was lost, which was blank but singed by him and it is misused by the respondent. He has instructed his banker to stop payment. Accordingly, the payment stop order was passed by the Banker. He submitted that, it is the defence of the petitioner that certain words flled on the cheque in dispute have been subsequently added by way of alteration. As such, it is very much necessary to refer the cheque in dispute to the hand writing expert for opinion. Learned Magistrate as well as the Additional Sessions Judge, Aurangahad did not consider this aspect in a proper perspective and turned down the prayer made by the petitioner. It has caused injustice to the petitioner. The right of the petitioner to defend his case is indirectly denied by the impugned orders.

7. He submitted that, in view of the specifc defence raised by the petitioner, an opportunity must be granted to the petitioner to adduce evidence by way of rebuttal. As the law places burden on the petitioner/accused, he must be given an opportunity to discharge it. An accused has a right to fair trial. He has a right to defend as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. Both the Courts below have committed an error in rejecting the prayer of the petitioner/accused, thereby right of the petitioner to defend his case is affected. He, therefore, urged to allow the petition and quash and set aside the impugned orders passed by both the Courts below.

8. Mr. Vakil, learned counsel for the petitioner relied on following stock of citations in support of his submissions:

i. T. Nagappa Vs. Y.R. Murlidhar, (2008) 5 SCC 633

ii. G. Someshwar Rao Vs. Samineni Nageshwar Rao and Another, (2009) 14 SCC 677

iii. Kalyani Bhaskar Vs. M.S. Sampoornam, (2007) 2 SCC 258

iv. Sau. Sonal W/o Arvind Khadar Vs. State of Maha