Digamber Singh Negi vs State Of Uttarakhand And Another
2022 Latest Caselaw 1594 UK

   HIGH COURT OF UTTARAKHAND AT NAINITAL

      Criminal Misc. Application No. 118 of 2022

Digamber Singh Negi                                    ........... Applicant

                                      Vs.

State of Uttarakhand and another                       ........ Respondents



Present : Mr. Abhijay Negi, Advocate for the petitioner.
          Mr. Lalit Miglani, A.G.A. for the State.


                                 JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to the

followings:-

(i) Order dated 29.10.2021 passed in

Complaint Case No. 955 of 2021,

Padam Datt v. Digambar Singh Negi,

by the court of Additional Civil Judge

(S.D.) VI/ Additional Chief Judicial

Magistrate, Dehradun ("the case").

                             By      the      impugned         order,   the

                             opportunity          to       adduce   defence

                             evidence has been closed; and

(ii) Order dated 06.12.2021 passed in

Criminal Revision No. 205 of 2021,

Digamber Singh Negi v. Padam Datt,

by the court of Incharge District

Judge, Dehradun.

2. Heard learned counsel for petitioner as well as

the learned State Counsel, and perused the record.

3. It appears that the respondent no. 2 ("the

complainant") filed a complaint under Section 138 of the

Negotiable Instruments Act, 1881 ("the Act") against the

petitioner, which formed the basis of the case. The

complaint was filed on 23.03.2015. In the case, on

14.09.2021, the examination of the petitioner under

Section 313 of the Code of Criminal Procedure, 1973 was

recorded. The petitioner had then stated that he would

adduce evidence in his defence. 06.10.2021 was the date

fixed for that matter. On 06.10.2021, the petitioner did

not appear and an application seeking exemption from

personal appearance was filed on his behalf, which was

allowed. In fact, the petitioner also sought adjournment

on that date, which was also allowed, and 29.10.2021

was fixed for defence evidence. On 29.10.2021 also, the

petitioner did not appear. On his behalf, an application

for exemption from personal appearance was filed, which

was allowed. On 29.10.2021, neither any adjournment

application was moved nor any evidence was adduced in

his defence by the petitioner. Therefore, the court closed

the opportunity to adduce the defence evidence and fixed

the case at another stage. This order is impugned.

4. Learned counsel for the petitioner would

submit that the petitioner was given only one opportunity

on 06.10.2021 to adduce defence evidence. On

29.10.2021, the opportunity to adduce defence evidence

has been closed. It is argued that right to fair trial

demands that an accused should be given opportunity to

adduce defence evidence.

5. In support of his contention, learned counsel

for the petitioner has placed reliance on the principles of

law as laid down in the case of Mrs. Kalyani Baskar v.

Mrs. M.S. Sampooranam, Appeal (Crl.) No. 1293 of 2006.

6. In the case of Mrs. Kalyani Baskar (supra), the

Hon'ble Supreme Court, inter alia, observed as

hereunder:-

"Section 243 (2) is clear that a Magistrate holding an inquiry under the Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he

directs to send the document for enabling the same to be compared by a hand-

writing expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and

courts should be jealous in seeing that there is no breach of them."

7. It may be noted that in the case of Mrs. Kalyani

Baskar (supra), in a proceeding under Section 138 of Act,

an application was moved by the accused in that case

requesting the Magistrate to send the cheque in question

for expert opinion to ascertain the correctness and

genuineness of signature on it. That application was

rejected. Under those circumstances, the above

observation has been made by the Hon'ble Supreme Court

in the case of Mrs. Kalyani Baskar (supra).

8. Undoubtedly, an accused should be given

adequate opportunity for his defence. Denial of

opportunity to adduce evidence would definitely go

against the spirit of free trial.

9. In the instant case, it cannot be said that the

court did not give any opportunity to the petitioner to

adduce any evidence. 06.10.2021 was the first date fixed

for defence evidence. On that date, the petitioner did not

appear. He was represented by his counsel, who sought

adjournment and exemption from his personal

appearance, which was allowed.

10. Adjournment, at any stage, need to be given

due consideration. It may not be allowed on mere asking.

In the case of Vinod Kumar v. State of Punjab, (2015) 3

SCC 220, the Hon'ble Supreme Court deprecated the

practice of granting adjournment on the drop of hat. In

para 57.1, the Hon'ble Supreme Court observed as

hereunder:-

"57.1. Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of."

11. In the instant case, on 29.10.2021, the

petitioner did not appear personally. He did not adduce

any evidence in his defence and even he did not seek any

adjournment. The court, in fact, did not have any reason

to adjourn the proceeding at the same stage. The court

closed the opportunity of adducing defence evidence by

the petitioner and proceeded ahead. It cannot be said that

the impugned order is against any provision of law. It

cannot be said that the petitioner did not get opportunity

to adduce evidence in defence. Opportunity does not

mean that it may be unguided. An accused does not have

unrestricted rights to adduce evidence as and when he

requires. As stated, in the instant case, opportunity to

adduce defence evidence was granted to the petitioner.

12. This Court is cautious that the approach of the

court in such matter should be realistic. But, then what

was the option before the court on 29.10.2021? As stated,

neither adjournment was moved nor defence evidence was

adduced. The only course open was to proceed ahead.

That is what the court has done.

13. Interestingly, the things did not stop here. On

the next date i.e. on 15.11.2021, again on behalf of the

petitioner adjournment application was moved. The

petitioner did not apply to the court seeking permission to

adduce defence evidence on that date. Even thereafter,

again, the petitioner moved another application to get

himself examined, which was rejected by the court on

1611.2021 on the ground that the opportunity to adduce

defence evidence has already been closed on 29.10.2021.

The petitioner would have assigned the reasons for not

adducing evidence on 29.10.2021 for consideration of the

court below, which the petitioner did not choose. Even it

has not been stated before the court as to why the

evidence was not adduced on 29.10.2021. Criminal trial

cannot be delayed without any reason.

14. In view of the above, this Court is of the view

that there is no reason to make any interference and the

petition deserves to be dismissed at the admission stage

itself.

15. The petition is dismissed in limine.

(Ravindra Maithani, J.) 24.05.2022 Avneet/