Case Note & Summary
The petitioner, Brijratan Mohta, is the accused in a complaint filed by the respondent, Vidarbha Nagrik Pat Sanstha, under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of a cheque. During the trial, the petitioner filed an application (Exh.82) before the Judicial Magistrate, First Class, Hinganghat, seeking to send the disputed cheque to a forensic laboratory for determination of the age of ink of the handwriting and signature appearing on the cheque. The petitioner's defence was that the cheque was originally issued on 10.10.2000 for Rs.25,000/-, but the respondent manipulatively altered the date to 18.10.2008 and the amount to Rs.4,25,000/-. The trial court rejected the application on 6.11.2014, without considering the merits of the defence. The petitioner then approached the High Court under Article 226 of the Constitution, contending that the rejection violated his right to fair trial under Article 21. The respondent argued that the petitioner had not taken this specific defence earlier and that the trial court had rightly rejected the application. The High Court, after perusing the impugned order, found that the trial court had not considered the petitioner's defence and had merely observed that the application was filed belatedly. The High Court held that the right to fair trial under Article 21 includes the right to defend oneself and to produce evidence, and that the rejection of the application without considering the defence amounted to denial of that right. The High Court set aside the impugned order and directed the trial court to allow the application and send the cheque for forensic examination. The petition was allowed.
Headnote
A) Criminal Procedure - Dishonour of Cheque - Right to Fair Trial - Article 21 of the Constitution of India - The accused in a cheque dishonour case sought to send the disputed cheque for forensic examination to determine the age of ink and signature, alleging manipulation of date and amount. The trial court rejected the application. The High Court held that the accused has a right to fair trial under Article 21, which includes the right to defend himself and to produce evidence in his defence. Rejection of such application without considering the accused's defence amounts to denial of fundamental right. The impugned order was set aside and the application was allowed. (Paras 4-9)
Issue of Consideration
Whether the rejection of the accused's application to send the disputed cheque for forensic examination to determine the age of ink and signature violates the accused's right to fair trial under Article 21 of the Constitution of India.
Final Decision
The High Court allowed the petition, set aside the impugned order dated 6.11.2014, and directed the trial court to allow the application (Exh.82) and send the disputed cheque to the forensic laboratory for determination of the age of ink of handwriting and signature of the petitioner.
Law Points
- Right to fair trial under Article 21 includes right to defend oneself
- Right to seek expert opinion on disputed documents
- Accused's right to send cheque for forensic examination to determine age of ink and signature
Case Details
2015 LawText (BOM) (03) 158
Criminal Writ Petition No.1010 of 2014
Mr. N.G. Dhoble for the Petitioner, Mr. P.P. Kotwal for the Respondent
Brijratan s/o. Govinddas Mohta
Vidarbha Nagrik Pat Sanstha, Hinganghat
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal writ petition under Article 226 of the Constitution of India challenging the order of the Judicial Magistrate, First Class, Hinganghat rejecting the petitioner's application to send the disputed cheque for forensic examination.
Remedy Sought
The petitioner sought to set aside the impugned order and to direct the trial court to send the disputed cheque for forensic examination to determine the age of ink and signature.
Filing Reason
The petitioner's application (Exh.82) to send the cheque for forensic examination was rejected by the trial court, which the petitioner claims violates his right to fair trial under Article 21.
Previous Decisions
The Judicial Magistrate, First Class, Hinganghat rejected the application on 6.11.2014.
Issues
Whether the rejection of the accused's application to send the disputed cheque for forensic examination violates the accused's right to fair trial under Article 21 of the Constitution of India.
Submissions/Arguments
Petitioner: The accused has a right to fair trial under Article 21, which includes the right to defend himself. The rejection of his application for forensic examination of the cheque to determine the age of ink and signature amounts to denial of that right.
Respondent: The petitioner did not take the specific defence earlier that the date and amount were manipulated. The trial court rightly rejected the application as belated.
Ratio Decidendi
The right to fair trial under Article 21 of the Constitution of India includes the right of an accused to defend himself and to produce evidence in his defence. Rejection of an application for forensic examination of a disputed document without considering the accused's defence amounts to denial of that fundamental right.
Judgment Excerpts
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.
On perusal of the impugned order, I find that there is great substance in the argument of the learned counsel for the petitioner.
The impugned order does not consider the defence of the petitioner at all. It only observes that the application is filed belatedly. This is not a proper approach.
The right to fair trial includes the right to defend oneself and to produce evidence in defence. The rejection of the application without considering the defence amounts to denial of that right.
Procedural History
The petitioner is the accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed by the respondent. During trial, the petitioner filed an application (Exh.82) to send the disputed cheque for forensic examination. The Judicial Magistrate, First Class, Hinganghat rejected the application on 6.11.2014. The petitioner then filed the present criminal writ petition under Article 226 of the Constitution of India before the High Court.
Acts & Sections
- Constitution of India: Article 21, Article 226
- Negotiable Instruments Act, 1881: Section 138
