IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL th ON THE 8 OF MAY, 2023 MISC. CRIMINAL CASE No. 32258 of 2019 BETWEEN:-

KESHAV SINGH KUSHWAH S/O RAMDEEN KUSHWAH, AGED ABOUT 50 YEARS, BHIND (MADHYA PRADESH)

.....APPLICANT (BY SHRI S.K. SHRIVASTAVA- ADVOCATE )

AND MUNNALAL SHARMA S/O LATE SRI TULSIRAM, AGED ABOUT 45 YEARS, MORENA (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI JITENDRA SHARMA- ADVOCATE)

This application coming on for hearing this day, the court passed the following:

ORDER

1. This petition has been filed under Section 482 of the Code of Criminal Procedure against the order dated 17.07.2019 passed by Sixth Additional Sessions Judge Morena in Cr.R. No.72/2019 whereby the order dated 27.06.2019 passed Judicial Magistrate I Class, Morena in criminal case No.3151/2007 has been confirmed by which the application submitted by the applicant under Section 45 of the Evidence Act for sending the disputed cheque for examination by the handwriting expert has been rejected.

2. Facts of the case in narrow compass are that the petitioner is facing criminal trial in the Court of Judicial Magistrate I Class, Morena, on a complaint Signature Not Verified Signed by: YOGENDRA filed by the Respondent under Section 138 of the Negotiable Instruments Act. In this case, petitioner filed an application under Section 45 of the Evidence Act praying for examination of the disputed cheque by handwriting expert.

4. The learned lower Court has rejected the application, hence, this Revision was filed which was also dismissed by learned Sixth Additional Sessions Judge.

5. On behalf of the petitioner, it is contended that production of evidence in his defence in the criminal trial is the constitutional right of the petitioner. If the petitioner is deprived of producing evidence in his defence then, it will be contrary to process of fair trial. The circumstance that signature was not done by the petitioner on the disputed cheque has to be proved by the petitioner to show and establish his aforesaid defence, hence the order of learned courts below is contrary to law and cause injustice to the petitioner.

6. Learned counsel appearing for the petitioner has placed reliance to the judgment of the Apex Court in the case of Kalyani Baskar vs. M.S. Sampoornam [(2007)2 SCC 258], T. Nagappa vs. Y.R. Muralidhar [(2008) 5 SCC 633] and G. Someshwar Rao vs. Samineni Nageshwar Rao [(2009) 14 SCC 677]

7. In the aforesaid judgments, the Hon. Apex Court has laid down that the accused has right to fair trial. He has a right to defend himself as a part of his human as also his fundamental rights under Section 21 of the Constitution of India, the right to defend oneself and for that purpose right to adduce evidence is recognised by the Parliament in terms of Section 2 of Section 243 of the Criminal Procedure Code.

8. Learned Counsel for the petitioner has also placed reliance on the judgment of this Court in the case of Abhishek vs. Ramesh (2012 (2) MPLJ Signature Not Verified Signed by: YOGENDRA

472) and Sohanlal Singhal & another vs. Sunil Jain reported in (2015 (1) MPLJ 622) in which placing reliance on the aforesaid judgment of Kalyani Baskar (supra) and T. Nagappa (supra) permission to call report of handwriting expert regarding disputed cheque has been given.

9. On the other hand, learned counsel appearing for the Respondent has placed reliance to the judgment of this Court in the case of Sanjay vs. Rajeev (2007(2) MPHT 182), Satyendra Upadhyaya vs. Omprakash Rathore @ Japan Singh (2010 MPLJ online 1), Bhadauria Tiles vs. Ramkumar Sing Kushwah (2011 MPLJ online 1), Sunita Dubey vs. Hukum Singh Ahirwar ( 2015(1) MPLJ 574) and the judgment passed in M.Cr.C.No. 13975/16 at Gwalior Bench in the case of Rajeev Jain vs. State of M.P., on 30.1.2017. In the aforesaid judgments, it is held that on the ground that accused has admitted the signature on the cheque, therefore, in view of provisions of Section 20 of the Negotiable Instruments Act,