IMPORTANT POINT
The main legal point established in the judgment is the right of the accused to fair trial and the need to provide an opportunity to rebut the presumption under section 139 of the N.I. Act, as emphasized in the Kalyani Baskar and T. Nagappa cases.

JUDGMENT :

Heard Mr. M.H. Rajbarbhuiya, learned counsel for the petitioner and also heard Mr. S.D. Purkayastha, learned counsel for the respondent.

2. In this petition, under Section 482 Cr.P.C. read with Article 227 of the Constitution of India, the petitioner has put to challenge the judgment and order, dated 23.11.2023, passed by the learned Additional Sessions Judge (FTC), Cachar, Silchar, in Criminal Revision No.79/2021. It is to be noted here that vide impugned judgment and order, dated 23.11.2023, the learned Court below has upheld the order, dated 30.10.2021 passed by the learned C.J.M., Cachar, Silchar, in N.I. Case No.191/2015. It is also to be noted here that vide impugned order, dated 30.10.2021, the learned C.J.M., Cachar, Silchar, in N.I. Case No.191/2015 has dismissed the petition under Section 243(2) of the Cr.P.C. filed by the petitioner for sending the cheque in question (Exhibit-1) to the handwriting expert.

3. The background facts leading to filing of the present petition, is briefly stated as under:-

“The petitioner was standing trial in N.I. Case No.191/2015, lodged by the respondent, in connection with dishonor of a cheque of Rs.10,00,000/- (Rupees ten lacs) allegedly issued by the present petitioner. While the trial of the said case was going on, the petitioner, who is an accused in the said case, had filed a petition, under Section 243(2) Cr.P.C., for sending the cheque in question, to the handwriting expert as he has not issued the same to the respondent. The ground of filing such petition before the learned C.J.M., Cachar, Silchar is that the petitioner has lost his saving passbook of his SBI account, bearing No.11033234178, and two numbers of cheque books and ATM card, while he was coming from his home to Silchar Town and to that effect he reported the matter to police, upon which the Officer-in-Charge, Silchar Police Station had recorded a G.D. Entry, No. 1186 dated 29.05.2013 and also issued a report thereto. Then, after hearing learned Advocates of both the parties and also considering the evidence of the PW-1, the respondent, the learned Chief Judicial Magistrate, Cachar, Silchar, has dismissed the petition on the ground that the petitioner has admitted his signature in the cheque in question and as such the statutory presumption is available in favour of the respondent.

Then, being aggrieved, the petitioner had preferred one revision petition, being Criminal Revision No.79/2021, before the Court of learned Additional Sessions Judge (FTC), Cachar, Silchar. Thereafter, hearing learned Advocates of both the parties, the learned Additional Sessions Judge (FTC), Cachar, Silchar, has dismissed the petition, vide impugned judgment and order, dated 23.11.2023, on the ground that the petitioner has admitted his signature in the cheque in question. The learned Additional Sessions Judge had also relied upon a decision of Hon’ble Supreme Court in the case of Bir Singh v. Mukesh Kumar, [Criminal Appeal No.230-231 of 2019 in SLP Nos.9334-35 of 2018.] in arriving at such a decision.

4. Being aggrieved, the petitioner approached this Court by filing the present petition for setting aside the impugned judgment and order, dated 23.11.2023, passed by the learned Additional Sessions Judge (FTC), Cachar, Silchar, in Criminal Revision No.79/2021 and also the order dated 30.10.2021, passed by the learned C.J.M., Cachar, Silchar, in N.I. Case No.191/2015, on the grounds mentioned herein below:-

(i) That, the learned Additional Sessions Judge as well as the learned C.J.M., Cachar, Silchar, committed gross illegality and injustice and passed the impugned judgments and orders without applying judicial mind.

(ii) That, the learned Courts below had failed to appreciate the fact that the SBI authority in the Annexure-2 dated 28.08.2015, has stated that the payment was stopped on the basis of information given by the petitioner about loss of the cheque, ATM and passbook and the respondent had manipulated the said cheque in question