KALUBHAI CHATARABHAI BHIL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Pravin Gondaliya, learned advocate for the petitioner. This Criminal Revision Application is filed by the petitioner challenging the order passed by the learned 5 th Additional Judicial Magistrate First Class, Deesa dated 08.09.2021 below Exh.34 whereby a request to send the disputed cheque to the handwriting expert for examination as it is claimed that it did not bear the thumb impression of the accused was rejected.

(2.) The petitioner is facing charge for an offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') on a complaint filed by respondent no.2 herein. As per the case of respondent no.2 - complainant, the cheque dated 20.08.2017 was issued by the petitioner - accused bearing the thumb impression of him towards the legally enforceable debt as claimed by the complainant. On presentation of the cheque for realization, the cheque returned unpaid as funds were insufficient in the account vide endorsement dated 14.09.2017. As per the case of the complainant, on 03.10.2017, notice under the provisions of 'the Act' came to be issued and it was sent through Registered Post A.D. to the petitioner - accused. Since the complainant did not receive any acknowledgment thereof either served or unserved, he applied to the Post Department to ascertain the status of the said notice to which the Postal Department had informed that the notice came to be served upon the petitioner - accused on 05.10.2017. However, within the time prescribed, since the petitioner - accused did not pay the amount of cheque which returned unpaid, after following the procedure prescribed under 'the Act', a complaint came to be filed. Vide order dated 09.04.2018, the complaint preferred by respondent no.2 - original complainant within time came to be registered and Court issued summons to the petitioner - accused fixing the date of hearing to be 14.05.2018. On summons being served, the petitioner - accused appeared before the Court and participated in the proceedings. It appears that the cross examination was conducted on behalf of the petitioner - accused of complainant who filed his examination-in-chief on oath on 10.11.2017 and the petitioner - accused cross examined him on 12.11.2018. It appears that thereafter also two more witnesses came to be examined on behalf of the complainant. Though no record of court proceedings is produced by the petitioner - accused, exact number of witnesses examined during the trial as also who are examined on behalf of the complainant is not known except mentioned in the impugned order. However, vide application Exh.34 dated 31.07.2021, the petitioner - accused came out with a plea that the cheque did not bear the thumb impression of the petitioner, and therefore, for examination of it, it is required to be examined by the fingerprint expert at the cost of the petitioner - accused. The trial Court vide order impugned passed below Exh.34 rejected the said application. However, the Court had permitted the petitioner - accused to get it examined at his own cost through private fingerprint expert within a period of 30 days thereof. It is the very order, which is impugned in this petition.

(3.) Mr. Gondaliya, learned advocate for the petitioner, submitted that for leading rebuttal evidence, examination of disputed cheque by fingerprint expert is necessary. It is submitted that the petitioner - accused must have a fair chance of leading his evidence in rebuttal of the presumption that would be raised against him. He has further submitted that the accused has a right to fair trial and permitting him to rebut the evidence appearing against him, the disputed cheque is required to be examined by the fingerprint expert. He has further submitted that the petitioner has a fundamental right to adduce evidence in his defence as also he has a right to rebut the evidence appearing against him led by the complainant. He has further submitted that since the thumb impression over the cheque of the petitioner - accused is identified by the father of the complainant, possibility cannot be ruled out of misuse thereof, and therefore, he has submitted that the cheque has to be sent to the fingerprint expert. Therefore, it is submitted that the order impugned is illegal and is required to be interfered with.