The main legal point established in the judgment is that fair trial includes fair and proper opportunities allowed by law to prove innocence, and adjournments should not be granted without valid reasons.

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. 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.”

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