2015 ALL MR (Cri) 2372
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

S. B. SHUKRE, J.

Brijratan s/o. Govinddas Mohta Vs. Vidarbha Nagrik Pat Sanstha

Criminal Writ Petition No.1010 of 2014

3rd March, 2015.

Petitioner Counsel: Mr. N.G. DHOBLE
Respondent Counsel: Mr. P.P. KOTWAL

Constitution of India, Art.226 - Writ petition - Order rejecting application for sending disputed cheque to forensic laboratory for determination of age of ink of handwriting and also signature of petitioner appearing thereon - Grievance of petitioner/accused that because of rejection of this application, denial of fundamental right of petitioner/accused has taken place - However, petitioner has already given sufficient opportunity to defend himself - Even in statement recorded u/S.313 of Cr.P.C., no stand has taken as a part of his defence - He only stated that disputed cheque was a forged one - But, that was not enough - Cannot be permitted to delay trial - Petition dismissed. 2008 ALL MR (Cri) 1945 (S.C.) Rel. on. (Para 8)

Cases Cited:
T. Nagappa Vs. Y.R. Muralidhar, 2008 ALL MR (Cri) 1945 (S.C.)=2008 (6) Mh.L.J. 515 [Para 8]


JUDGMENT

JUDGMENT :- Heard.

2. Rule. Rule made returnable forthwith.

3. Heard finally by consent.

4. This petition is directed against the order dated 6.11.2014, passed by the Judicial Magistrate, First Class, Hinganghat rejecting the application filed by the petitioner for sending the disputed cheque to the forensic laboratory for determination of the age of ink of handwriting and also the signature of the petitioner appearing thereon.

5. It is the contention of the learned counsel for the petitioner that the petitioner, who is accused in this case, has a right to fair trial and to defend himself which is part of his fundamental right as enshrined under Article 21 of the Constitution of India. He submits that because of the rejection of his application vide Exh.82, denial of fundamental right of the petitioner has taken place and, therefore, now the petitioner is before this Court for seeking redressal of his grievance.

6. According to the learned counsel for the respondent, nowhere during the course of trial of the case against the petitioner that the petitioner had taken a specific defence that the date of the disputed cheque was not of 18.10.2008 but was of 10.10.2000 and that it was issued not for 4,25,000/-, but for Rs.25,000/- only and that the figures "18.10.2008" and "Rs.4,25,000/-" were manipulatively created later on by the respondent. This has been appropriately considered by the trial Court and, therefore, there is no need to interfere with the impugned order, so submits learned counsel for the respondent.

7. On perusal of the impugned order, I find that there is great substance in the argument of learned counsel for the respondent and no merit in the argument of learned counsel for the petitioner.

8. Learned counsel for the petitioner has placed his reliance upon the case of T. Nagappa vs. Y.R. Muralidhar, reported in 2008 (6) Mh.L.J. 515 : [2008 ALL MR (Cri) 1945 (S.C.)] to support his argument that the accused should be given a fair chance to defend himself. No doubt, the right to a fair trial and right to defend are part of fundamental right of an accused facing a criminal trial and, therefore, adequate opportunity must be given to an accused to defend himself properly and effectively. In the instant case, the accused i.e. the petitioner has already been given sufficient opportunity to defend himself and yet he never came up with any specific defence until his statement under Section 313 of the Cr.P.C. was recorded. It was only from that stage that he started saying that the disputed cheque was not issued for Rs.4,25,000/- on 18.10.2008, but was issued only for Rs.25,000/- on 10.10.2000. In order to assert right of defence, it is well settled law, the accused has to lay appropriate foundation while crossexamining the witnesses of the prosecution. But, it can be seen in this case that no such foundation has been laid by the petitioner. The petitioner, while cross-examining the complainant, did not even suggest that the disputed cheque was issued on 10.10.2000 for an amount of Rs.25,000/- as a part of Hundi transaction. It was also not suggested in the cross-examination that the complainant manipulated the date and the amount by changing them to 18.10.2008 and Rs.4,25,000/- respectively. Even in the statement recorded under Section 313 of the Criminal Procedure, the petitioner did not take this stand as a part of his defence. He only stated that the disputed cheque was a forged one. But, that was not enough. Some specific stand was required to be taken by the petitioner. If he has not taken such a specific stand in his defence, I do not think that now, after completion of recording of his statement under Section 313 of the Criminal Procedure Code, the petitioner can be permitted to come up with a new story and be further allowed to send the disputed cheque to an appropriate forensic laboratory for determination of the age of ink of handwriting and signature appearing on the disputed cheque.

9. If the accused has a fundamental right to defend himself, the prosecution or the complaint too has a fundamental right to fair trial of the case. Therefore, it would fall upon the Court to strike a balance between these competing rights and ensure that reasonable opportunity is given to both sides to realize their respective rights. In this effort, Court has to afford to each side as much opportunity as is sufficient to enable each side to assert the right without encroaching upon the right of the other side. In the instant case, the defence being newly taken up at belated stage by the petitioner is nothing but an attempt on his part to delay the disposal of the case without any sufficient cause and thereby encroach upon the fundamental right of prosecution to fair trial of the case. Therefore, I find that in this case, as held in the case of T Nagappa, the petitioner has already been given sufficient opportunity to defend himself, and now, he cannot be permitted to delay the trial.

10. In the circumstances, I am of the view that this petition is without any merit and it deserves to be dismissed.

11. The petition stands dismissed.

12. Rule is discharged.

13. It is made clear that the trial Court shall not be influenced in any manner by the observations appearing in this judgment and shall consider the defence of the petitioner on its own merits.

Petition dismissed.