The right to a fair trial includes the opportunity for the accused to summon evidence at the defense stage under Section 91 Cr.P.C.

ORDER

1. The petitioner, by this criminal misc. petition, has assailed the order dated 24.07.2015 whereby his application moved under Section 91 Cr.P.C. for calling of the statement of account of the respondent - complainant - firm, was rejected at the stage of defence.

2. Learned counsel appearing for the petitioner submits that the learned trial Court has erred in rejecting his application under Section 91 Cr.P.C, which was moved at the stage of evidence, relying on a judgment passed by the Supreme Court in State of Orissa Versus Debendra Nath Padhi reported in (2005) 1 SCC 568.

3. This Court in S.B. Criminal Miscellaneous (Petition) No.3542/2019: Anil Roop Mathur Versus State of Rajasthan & Anr., decided today i.e. on 27.01.2020, after considering the lawin relation to Section 91 Cr.P.C. and relying upon the aforesaid judgment as well as subsequent judgments passed by the Supreme Court in Nitya Dharmananda & Anr. Versus Gopal Sheelum Reddy & Anr.: (2018) 2 SCC 93 and Bhola @ Yadvinder Singh Versus State of Rajasthan: 2013 (5) WLC (Raj.) 773, held that the powers under Section 91 Cr.P.C. can be revoked at the stage of defence, however, it cannot be taken up at the stage of framing of the charges. In the case of T. Nagappa Versus Y.R. Muralidhar: AIR 2008 SC 9010, the Apex Court has held as under:

"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. 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.- (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."

4. Keeping in view the law as settled above, this Court finds that in the present case, the application was moved at the stage of defence and by the said application, the accused sought summoning of the statement of account of the complainant - firm as the complainant, in his complaint, has mentioned that in Account No. JA-077, the accused had without consent of the complainant shown the due balance amount and thereafter, issued Cheque No.546888 of a sum of Rs.7 lacs on 15.2.2011, although learned counsel for the petitioner has alleged that there was no such interpolation done in the account. Thus, the application was moved demanding for the statement of account.

5. In support of his defence, learned counsel submits that there was no such interpolation and the cheque was not issued for the purpose. At the stage of defence, learned trial Court has rejected the said application relying upon the judgment in Debendra Nath Padhi (supra) whereas in the said judgment, the Apex Court has specifically held that the application could not be entertained at the stage of charge, but the stage whe