Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No. 2172 of 2014 Amlesh Kumar .... Petitioner Versus 1. The State of Jharkhand 2. Arun Kumar … Opposite Parties --- CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. Pandey Neeraj Rai For the State : A. P. P. For O.P. No. 2 : Mrs. A. R. Choudhary --- Order No. 08 Dated 10th December , 2014 1. Heard learned counsel for the petitioner and the learned counsel for the State as well as the learned counsel for the opposite party No.
2. 2. At the outset, learned counsel for the petitioner has confined his argument with respect to the challenge made by him to the orders dated 19.3.2013 and 28.6.2014 in which the application filed by him for sending the concerned cheque to F.S.L. for its verification was rejected and subsequently affirmed in revision.
3. As regards the order taking cognizance, he has submitted that he may be allowed to put forward his defence about defect in service of notice at the appropriate stage. It is always open to the petitioner to raise this plea at the appropriate stage which shall be considered by the learned court below on its own merits.
4. Coming to the main issue raised by the petitioner it appears that this criminal miscellaneous petition is directed against the order dated 19.3.2013 by which the application of the petitioner for sending the cheque in question to Forensic Science Laboratory (F.S.L.) with respect to the veracity and genuineness of the same was rejected, which was subsequently affirmed in Criminal Revision No. 155 of 2013 vide order dated 28.6.2014 passed by learned Sessions Judge, Jamshedpur.
5. Reverting back to his main thrust of argument, learned counsel for the petitioner has assailed the impugned order by submitting that the learned courts below did not take into consideration the fact that the petitioner was residing in a far off place at Samastipur in the State of Bihar, whereas the present case was pending at 2. Jamshedpur, as a result of which he could not properly pursue his case. He has further submitted that no question with respect to the genuineness of the cheque in question was put to him u/s 313 Cr.P.C.. He has also relied upon a judgment in the case of T. Nagappa v. Muralidhar reported in (2008) 5 SCC633in which he has referred to Paragraphs-7 and 8 which are quoted herein below:- "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.
8. 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 Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under:-
"43. Evidence for defence.-(1) * * * (2) If the accused, after he has 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" 6. Learned counsel for the opposite party No. 2, on the other hand, has submitted in fact the petitioner was given several opportunities to produce his evidence but the petitioner through out the trial adopted delaying tactics. The case was instituted in the year, 2009, but on one pretext or the other, the case was delayed. She has further submitted that on 4.12.2012, the petition filed by the petitioner u/s 311 Cr.P.C. with a prayer to recall earlier order dated 18.10.2012 was allowed and two dates were given to the petitioner to adduce evidence. She has further submitted that the case was adjourned on several dates. Finally when the case was fixed for argument, on 4.2.2013 a petition was filed by the petitioner with a 3. prayer for sending the cheque in question to F.S.L. and calling for a report about the genuineness of the said cheque. However, the said petition was rejected by the learned Judicial Magistrate vide order dated 19.3.2013, which was subsequently affirmed in revision vide order dated 28.6.2014.
7. Considering the arguments of both the sides, and after perusal of the documents, I find that the cheque in question was presented to the bank on 16.2.2009 and after necessary procedure a complaint was instituted in which vide order dated 28.4.2009 a prima facie case u/s 138 of the Negotiable Instrument Act was found and ultimately the trial proceeded. But, it appears that on account of delaying tactics adopted by the petitioner, the trial was prolonged and lastly when he found no option, he filed a petition with a prayer for sending the cheque in question to F.S.L. for determining the genuineness of the said cheque. So far as the judgment reported in (2008) 5 SCC633(Supra), relied upon by the learned counsel for the petitioner, is concerned, I find that the same does not support the case of the petitioner, rather in the context of the findings rendered by the Hon'ble Supreme Court in Paragraph-7 of the aforesaid judgment if considered, then it appears that sufficient opportunities were given to the petitioner to produce his evidence before the trial court. Moreover, when the cheque itself was issued in the year 2009, the petitioner has failed to give any explanation as to what prevented him from raising the issue of genuineness of cheque for 5 years. Considering the totality of the facts and circumstances mentioned above, I find no merit in this criminal miscellaneous petition, which is accordingly dismissed. (RONGON MUKHOPADHYAY, J.) MK