Nisha Gupta, J. - (1.) This Misc. Petition under Section 482 Cr.P.C. has been filed against the order dated 7.1.2009 whereby the application under Section 73 of the Evidence Act has been rejected.
(2.) The short facts of the case narrated in the petition are that complainant respondent No.2 lodged a complaint under Section 138 of the Negotiable Instructions Act against the present petitioner and the contention of the present petitioner was that cheque has been misused and complainant has taken the cheque from Rajesh Yadav and moved an application under Section 73 of the Evidence Act which was rejected. Petitioner filed the revision which was also rejected, hence this petition.
(3.) The contention of the present petitioner is that he has a right to defend and if cheque and the deposit slips were not sent to the expert opinion, his right to defence would be affected prejudicially. The contention of the present petitioner is that complainant has stated that cheque (Ex. P/2) and deposit slip (Ex.P/1) have been written by different persons whereas bare perusal of both could show that both have been written by the same person hence a comparison is essential and reliance has been placed on T. Nagappa v. Y.R. Muralidhar, AIR 2008 SC 2010 wherein it has been held: "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. An accused has a right to fair trial. He has a 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 recognized by the Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure." ;