Crl. Misc. No.- 53104 of 2008 in/and Crl. Revision No. 1358 of 2008 Parveen Balwan Versus National Irrigation Equipment Co. Present: Mr. Jai Vir Yadav, Advocate for the petitioner. Mr. Akshay Bhan, Advocate for the respondent. Crl. Misc. No.- 53104 of 2008 Application allowed. Documents Annexure A1 and A2, taken on record. Crl. Revision No. 1358 of 2008 The petitioner is impugning the order whereby his request to examine an expert regarding cutting/hand writing on the disputed cheque is dismissed. The Court has declined this prayer on the ground that the similar prayer had earlier been dismissed on 22.1.2007 and the present prayer if allowed would lead to review of earlier order. Learned counsel for the petitioner contends that the Court is not justified in making the above observation, as earlier the petitioner had sought permission of the Court for referring this document for examination by an expert and then lead the opinion of the expert in evidence. That prayer was declined. Now petitioner is in the process of leading his defence and has already procured an opinion of hand writing expert in regard to the cheque and this is already lying on record. The requirement now is only to examine an expert to prove the said opinion which is already lying on record. Counsel also submits that the expert who had given this opinion was present on the day when this prayer for examining him as a witness was made and was declined by the Court. Mr. Akshay Bhan, counsel appearing for the respondent relies upon an application, Annexure A1, to say that the similar prayer was made Crl. Misc. No.- 53104 of 2008 in/and Crl. Revision No. 1358 of 2008 -2- through this application, which was declined through an order, Annexure A- 2. Learned counsel submits that if the present permission as sought by the petitioner is granted it would amount to review of the earlier order. Prima facie it does not appear to be so. Earlier the petitioner was for seeking help of the Court for examination of a document. The petitioner has now obtained an opinion of expert in regard to writing on this document. Prayer is for leading this opinion as evidence and it would be for the Court to give any weight to this evidence while deciding the case. An accused is entitled to full opportunities to defend himself and even is required to be given great latitute to raise all the defences which are available to him. Reference here can be made to the case of T. Nagappa versus Y.R. Muralidhar (2008) 2 Supreme Court Cases (Cri) 677. The Hon'ble Supreme Court in this case has observed as under: “ When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118 (a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it.” It is further observed that an accused has right to fair trial. He has right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by Parliament in terms of Section 243 Cr.P.C. It is also observed that what should be the nature of evidence is not a matter which should be left only to Crl. Misc. No.- 53104 of 2008 in/and Crl. Revision No. 1358 of 2008 -3- the discretion of the Court. It is the accused who knows how to prove his defence. Court being the master of the proceedings must determine as to whether the application filed by the accused in terms of S. 243 (2) Cr.P.C. is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. In Kalyani Baskar Versus M.S. Sampoornam (2007) 2 SCC 258 it has been held that if the Magistrate holding an enquiry directs to send a document for being compared by hand writing expert would not exceed his power as the purpose is to enable him to compare the disputed writing with the admitted writing to reach his own conclusion. It is even observed that where the Magistrate decline such a prayer it would lead to depriving an accused of rebutting the case against him. Hon'ble Supreme Court went on to observe that: “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 the courts should be jealous in seeing that there is no breach of them.” The impugned order if allowed may lead to denying the petitioner a fair trial. The petitioner should be given a fair chance to defend Crl. Misc. No.- 53104 of 2008 in/and Crl. Revision No. 1358 of 2008 -4- himself. The petitioner be permitted to examine expert who has given opinion in regard to writing on the document. The impugned order is accordingly set aside. The petitioner would be at liberty to examine this expert as a witness. The parties through their counsel are directed to appear before the trial Court on the next date fixed. The petitioner will have only one opportunity to examine the expert who has given an opinion on this document. The revision petition is, accordingly, disposed of. (RANJIT SINGH) NOVEMBER 19, 2008 JUDGE rts