ARUN SHESHKARAN KOCHAR Vs. SUNIL FULCHANDJI BHARUT

JUDGEMENT

(1.) Heard Mr.P.P. Kotwal, learned counsel for the petitioner and Mr D.B. Yengal, learned APP for respondent.

(2.) Rule, returnable forthwith. With the consent of respective learned counsel, the matter is taken up for final disposal

(3.) Learned Advocate for the respondent/complainant opposed the petition mainly on the ground of delaying tactics adopted by the accused. He made reference copy of the notings of the Court in order to submit that since most of the times the accused was absent the case was simply adjourned and presence of the accused was procured on the basis of issuance of nonbailable warrant. The accused attended the court on 30.12.2009 when he applied for cancellation of warrant. The case was adjourned to 2.1.2010, 16.1.2010, 9.2.2010, 6.3.2010, 20.3.2010, 20.4.2010, 8.6.20, 16.7.2010, 3.8.2010, 30.8.2010, 23.9.2010, 7.10.2010, 25.10.10 and 16.11.2010. It appears that although there were plethora of adjournments on account of absence of either of the parties, the accused moved an application for permission to refer the cheque to Handwriting Expert only on 16.11.2010 in respect of which the impugned order was passed. According to the learned Advocate for the respondent although such permission is granted for the accused to lead defense evidence as desired by him, it would not serve any purpose much the less fruitful purpose, unless Uttamchand Zambad examined as witness. Be that as it may, section 243 of the Code which has to be referred with reference to Section 247 as this is a case instituted otherwise than on police report. It does imply that the accused is entitled to make an application when he entered upon his defense for to issue any process for compelling the attendance of any witness, for the purposes of leading rebuttal evidence and it is mandatory for the trial Magistrate to issue such process unless the trial Judge considers the application as vexatious or filed for causing undue delay or for to defeat the ends of justice. Looking to the order passed in question, the learned trial Magistrate observed as follows : "It appears that the accused is playing delay tactics and prolonging the matter" while rejecting the application. Looking to the number of adjournments, I think the learned trial Magistrate could have imposed costs upon the accused or even upon the complainant for causing delay in trial. However, merely on that ground the substantial right of the accused to enter into defense and to produce the evidence as he desires ought not to have been disallowed merely on the ground of delay, particularly when in the facts and circumstances of this case, it is contention of the accused that he could not attend the trial on account of the fact that he was undertrial prisoner in the pending Sessions case at Surat (Gujarat). Therefore, considering the observations of the Apex Court in the ruling in T.Nagappa when it is defense contention that the complainant has misused the cheque, an opportunity must have been granted to the accused for adducing evidence in rebuttal since accused has a right to fair trial and he is entitled to defend himself as a part of his human as well as fundamental right as enshrined in Article 21 of the Constitution. The right to defend and to adduce evidence is recognized by Parliament in terms of Sections 243(2) read with section 247 of the Code. The Apex Court had also observed that it is the accused who knows how to prove his defence and he should be ordinarily allowed to approach the Court for obtaining its assistance regarding summoning of witnesses etc. while taking care that he shall not be allowed to unnecessarily protract the trial beyond the level of tolerance. If the trial Magistrate feels that any party is causing delay in the course of the trial to lead evidence primarily a party may be imposed with reasonable costs; heavier if repeated adjournments are sought before taking the drastic decision to foreclose the party from to lead evidence.