An accused is entitled for opportunity at every stage of the case and the court can curtail the constitutional liberty of a person by sentencing him to imprisonment. Therefore, the criminal jurisprudence recognizes the opportunity to the accused a fair trial throughout whether it is before the Trial Court or before the appellate courts or before the Revisional court or even before the Supreme Court.

These petitions arise out of one solitary proceeding in

Criminal Appeal No.100/2019, whereby the IV Additional

District and Sessions Judge, Dharwad (for short, ‘the first

Appellate Court’) has allowed the applications filed by the

accused under Section 391 of Cr.P.C. and Section 45 of the

Indian Evidence Act 1872. The complainant calls in

question the orders passed on the applications.

2.

Heard Sri Aravind D.Kulkarni, learned counsel

appearing for petitioner and Sri Avinash Banakar, learned

counsel appearing for respondent.

3.

The brief facts leading to filing of these petitions

as bourn out from the pleadings are as follows :

A cheque for Rs.1,05,000/- drawn on HDFC Bank,

Dharwad was issued by the accused in favour of the

complainant, when the complainant presented the said

cheque for its realization, a stop payment direction was

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issued by the accused. Based upon which, a legal notice

was caused by the complainant on the accused on

03.12.2012. A reply was given by the accused to the said

legal notice on 18.12.2012. Since the reply was not for

payment of the amount, the complainant files a private

complaint invoking Section 200 of Cr.P.C. for the offence

punishable

under

Section

138

of

the

Negotiable

Instruments Act, 1881 (for short, ‘the NI Act’). The trial

Court by its Judgment dated 20.07.2019 convicted the

accused for the offence punishable under Section 138 of

the NI Act and further directed payment of fine of

Rs.1,20,000/- and in default of payment of said fine

amount, he would undergo imprisonment for a period of six

months.

4. The accused being aggrieved by the Judgment and

order of conviction dated 20.07.2019, preferred an appeal

before the first appellate Court in Criminal Appeal

No.100/2019. During pendency of the said appeal, the

accused files two applications, one under Section 391 of

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Cr.P.C. seeking production of account statements and the

other application under Section 45 of the Indian Evidence

Act, seeking reference of the disputed cheque to the

handwriting experts as the ground urged by the accused

was that there was material alteration in the date

mentioned on the cheque. The complainant files his

objections to both applications and seeks its dismissal. On

consideration of the averments and the contentions, the

first appellate Court by its order dated 15.10.2020 allows

the applications by nominating the local handwriting expert

to give an opinion on the alleged alteration of the date and

further directed conclusion of the arguments within 15 days

thereafter. It is these orders that has driven the

complainant before this Court.

5. This Court on entertaining the petition granted

interim order of stay of further proceedings before the first

appellate Court and the same is in subsistence even as on

date.

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6. The learned counsel for the petitioner Sri Aravind

D. Kulkarni, would submit that the applications filed by the

accused is only a ruse to drag the proceedings, as he had

all opportunity for production of such material before the

trial Court having failed to do so, it was not open for him to

file these applications before the first appellate Court. He

would submit that the first appellate Court has grossly

erred in allowing the applications.

7. On the other hand, Sri Avinash Banakar learned

counsel appearing for the respondent would refute the

submission and contend that it is not for the first time the

ground of material alteration of the cheque is taken, the

right from the reply given by the accused, that is his stand

and therefore, the applications are filed before the first

appellate Court and he would submit that there is no bar in

law for the first appellate Court to take note of applications

under Section 391 of Cr.P.C. or under Section 45 of Indian

Evidence Act as the case would be.

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8. I have given my anxious consideration on the

submissions of the respective learned counsel and perused

the material on record.

9. The only issue that f