H.R.PANWAR,J. - (1.) HEARD learned counsel for the petitioners and perused the orders impugned.
(2.) IT is contended by learned counsel for the petitioners that the accused petitioners have a valid defence and therefore, considering the defence, the accused petitioners deserves to be discharged for the offence under Sec. 138 of the Negotiable Instruments Act, 1881 (for short 'the Act' hereinafter). From the perusal of the order passed by the Additional Chief Judicial Magistrate, Gulabpura, Bhilwara (for short 'the Trial Court' hereinafter) dated 18.3.2005 it appears that on a complaint filed by respondent complainant under Sec. 138 of the Act, the Trial Court took the cognizance of the offence and issued the process. On appearance of the accused before the Trial Court, the accused moved an application under Sec. 245(2) and 259 CrPC seeking to discharge him on the ground of certain defences agitated therein. The Trial Court prima facie came to the conclusion that there is ground to proceed against the accused petitioners for the offence under Sec. 138 of the Act and therefore, did not find any ground to discharge the accused petitioners. The ac cused petitioners filed a revision petition before the learned Additional Sessions Judge, Gulabpura (for short 'the revisional Court' hereinafter). The Revisional Court did not find any error in the order of the Trial Court and held that at the time of cognizance and framing of charge/reading of substance of charge, the only material filed by the police after investigation or the material placed on record by the complainant in the complaint case is to be seen and the defences if any available to the accused cannot be considered at that stage.
(3.) IN State of Orissa vs. Debendra Nath Padhi, 2003 (3) R. Cr. D. 390 (SC) = JT 2004 (10) SC 303, a three Judge Bench of the Hon'ble Supreme Court held that at the time of framing the charge or taking cognizance, the accused has no right to produce any material. The Apex Court further observed that the only right the accused has at that stage is of being heard and nothing be- yond it. The Apex Court further held as under:-- "At the stage of framing the charge roving and fishing inquiry is impermissible. It is well settled that at the stage of framing of charge, the defence of the accused cannot be put forth. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and nothing more. The expression hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge, hearing the submissions of the accused has to be confined to the material produced by the police." ;