Case Note & Summary
The petitioner, Dinesh Dilip Malu, is facing prosecution under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of a cheque. During the trial before the Judicial Magistrate First Class, Aurangabad, the petitioner filed applications (Exhibits 76 and 77) seeking permission to lead further defence evidence and to forward the disputed cheque to a handwriting expert for opinion. The petitioner's defence was that the cheque was signed by him but was blank and lost along with other important documents, and that he had instructed his banker to stop payment. The learned Magistrate rejected both applications by a common order dated 9.3.2022. The petitioner challenged this order before the Additional Sessions Judge, Aurangabad, in Criminal Revision Application No.94 of 2022, which was also dismissed on 9.6.2022. Aggrieved, the petitioner filed the present criminal writ petition before the Bombay High Court. The High Court heard arguments from both sides. The petitioner's counsel argued that the accused has a right to lead defence evidence and that the courts below had not properly considered the specific defence. The respondent's counsel opposed the petition. The High Court, after considering the submissions, set aside the orders of the courts below and remanded the matter back to the learned Magistrate for fresh consideration of the applications, directing that the accused be given an opportunity to lead further defence evidence and that the cheque be forwarded to a handwriting expert if necessary. The High Court emphasized the importance of a fair trial and the accused's right to prove his defence.
Headnote
A) Criminal Procedure Code - Right to Defence - Further Evidence - The accused in a cheque dishonour case sought permission to lead further defence evidence and to forward the cheque to a handwriting expert, claiming the cheque was blank and lost. The Magistrate and Sessions Court rejected the applications. The High Court held that the accused has a right to lead defence evidence and that the courts below had not properly considered the accused's specific defence. The matter was remanded for fresh consideration. (Paras 1-10) B) Negotiable Instruments Act, 1881 - Section 138 - Cheque Dishonour - Handwriting Expert - The accused raised a defence that the cheque was signed but blank and lost, and that he had instructed stop payment. The High Court held that forwarding the cheque to a handwriting expert could assist in determining the truth and that the accused should be given an opportunity to prove his defence. (Paras 2-10)
Issue of Consideration
Whether the courts below erred in rejecting the accused's application to lead further defence evidence and to forward the disputed cheque to a handwriting expert for opinion, thereby violating the accused's right to a fair trial under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The High Court allowed the criminal writ petition, set aside the orders of the Magistrate and Sessions Court, and remanded the matter back to the learned Magistrate for fresh consideration of the applications. The Magistrate was directed to give the accused an opportunity to lead further defence evidence and to consider forwarding the cheque to a handwriting expert.
Law Points
- Right of accused to lead defence evidence
- Power of court to permit further evidence
- Section 138 Negotiable Instruments Act
- 1881
- Handwriting expert opinion
- Fair trial
- Criminal Procedure Code
- 1973
