1 2025:CGHC:2700 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2138 of 2023 1 - Dr. Manmohan Kumar Khanduja S/o Shri Dharampal Khanduja, Aged About 67 Years R/o House No. 36/6, Nehru Nagar (East) Bhilai, Civil,t Ehsil And, District : Durg, Chhattisgarh --- Petitioner(s) versus 1 - Shankar Singh Kothari S/o Shri Kanhaiyalal Kothari, Aged About 57 Years 52 Years At The Time Of Complaint) R/o - Kamptee Line, Beside Bhilai Scan, Rajnandgaon, Civil, Tehsil And Revenue District Rajnandgoan Chhattisgarh. --- Respondent(s) CRMP No. 2429 of 2023 1 - Dr. Manmohan Kumar Khanduja S/o Shri Dharampal Khanduja, Aged About 67 Years R/o - House No. 36/6, Nehru Nagar, (East) Bhilai, Civil Tehsil And District Durg Chhattisgarh. ---Petitioner(s) Versus 1 - Shankar Singh Kothari S/o Shri Kanhaiyalal Kothari, Aged About 57 Years (52 Years At The Time Of Complaint), R/o Kamptee Line, Beside Bhilai Scan, Rajnandgaon, Civil, Tehsil And Revenue District Rajnandgoan Chhattisgarh. ----Respondent For Petitioner : Mr. Jaydeep Singh Yadav, Advocate For Respondent : Mr. Manoj Paranjpe, Advocate Hon’ble Shri Arvind Kumar Verma, Judge Order on Board 16/01/2025 1. Since subject matter in the both the petitions being common, this Court 2 proceeds to decide the matter by this common order. 2. The instant both CRMP have been preferred under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the order dated 22.08.2023 passed in Case No. 1202/2018 and 1203/2018 respectively (Annexure A-1) passed by the learned Judicial Magistrate First Class Rajnandgaon (C.G.), whereby the learned trial Court has dismissed the application of petitioner (accused) under Section 45 of the Indian Evidence Act, 1872 for handwriting and expert examination of the letter-cum-reply dated 16.02.2018 filed by the complainant under Section 138 Instrument Act, 1881 before the JMFC Rajnandgaon. 3. Brief facts of the present case is that earlier the respondent filed a complaint u/s 138 of the Negotiable Instruments Act, 1881 in the year 2018 before the learned JMFC, Rajnandgaon (C.G.) alleging that the petitioner/accused had given him a cheque for the repayment of the due amount and when the complainant presented the said cheque before the Bank of Maharashtra, Rajnandgaon, it was dishonored leading to the filing of the complaint u/s 138 of the Negotiable Instruments Act, 1881. The Ld. JMFC, Rajnandgaon registered the complaint and issued summons to the petitioner (accused) for his presence leading to the appearance of the petitioner before the Ld. Court below and upon receiving the copy of the complaint, the petitioner then preferred an application under section 45 of the Indian Evidence Act, 1872 dated 11/03/2019 before the Ld. JMFC, Rajnandgaon thereby praying for the permission of the Ld. Court below for the examination of the letter-cum-reply filed by the complainant (Respondent) stating that the same is forged and 3 fabricated and also requested the Ld. Court below to allow him to get the said document examined by two hand-writing experts. On 11/04/2019, the Ld. Court below dismissed the said application preferred u/s 45 of the Indian Evidence Act, 1872 stating that, if the letter is forged or not is subject matter of evidence and since right of cross-examination is there for the accused, no adverse effect will be caused to him and after the cross-examination is over, then on the basis of the said evidence, opinion can be given regarding that. Hence, the application u/s 45 of Evidence Act is not maintainable at this stage and is dismissed. Upon the said order which specifically stated that at this stage, the application u/s 45 of Indian Evidence Act is not maintainable, the petitioner (accused) then proceeded with the evidence of the trial and completed the cross-examination of the complainant, the petitioner (accused) then again preferred an application u/s 45 of the Indian Evidence Act on 01/07/2023 thereby praying for the grant of permission to get the document in question examined by the handwriting and expert witnesses. The learned Court below vide its order dated 22/08/2023 dismissed the said application u/s 45 of evidence act, preferred by the petitioner. 4. The learned counsel for the petitioner submits that the very refusal to the petitioner/accused to not letting him get the alleged document dated 16.02.2018 examined by an expert is a clear obstruction for him to prove his defence and to rebut the case of the complainant wherein the said original document is in possession of the complainant and without the permission of the Learned Court below, 4 the petitioner cannot get it examined and the blatant refusal by the learned Court below amounts to violation of the fundamental right of the petitioner as right to fair trial is guaranteed under article 21 of the Constitution of India and is a clear case of depriving the petitioner of his opportunity of rebutting it wherein the law of the land is fairly well- settled by the rulings of the Hon’ble Supreme Court (G Someshwar Rao Vs. Samineni Nageshwar Rao and Anr.) reported in AIR2009 SC(Supp)2050 that the accused cannot be convicted without an opportunity being given to her/him to present evidence and if it is denied, then there is no fair trial and fair trial includes fair and proper opportunities allowed by law to prove one’s innocence and adducing evidence in support of the defence is a valuable right and denial of this right means denial of fair trial. 5. Learned counsel for the respondent/s opposing the submission made by the learned counsel for the petitioner and submits that once an application preferred by the petitioner/accused under Section 45 of Indian Evidence Act was rejected by the JMFC, the second application would not be maintainable on same set of facts. 6. I have learned counsel for the parties and perused the records. 7. On perusal of records it transpires the fact that the application filed by the petitioner under Section 45 of Indian Evidence Act, 1872 dated 11.04.2019 was rejected only on the ground that the accused cannot collect the material through the Court and whether the letter was forged would be subject matter of trial and it can be decided on the basis of evidence available on records. 5 8. This Court of the opinion that the application preferred on 11.03.2019 by the petitioner under Section 45 of IE Act would have been considered on merits and it should not be rejected on technical ground vide order dated 11.04.2019. This Court is of the considered view that ends of justice would meet if the impugned order dated 22.08.2023 is set aside in both the petitions and the same are remitted back to the concerned Court for deciding it afresh on its own merits after giving due opportunity of defense to either party. 9. OfÏce is directed to send a certified copy of this Order to the concerned Court for necessary information and compliance forthwith. sd/- (Arvind Kumar Verma) Judge Jyoti