1. The present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner herein – original accused to quash and set aside the impugned order dated 26/02/2008 passed by learned Judicial Magistrate, First Class, Mahesana below Exh.79 in Criminal Case No.293 of 2004, by which, learned Magistrate has rejected the said application submitted by the petitioner herein for sending the cheque in question to the Handwriting Expert for proving the subsequent case on behalf of the petitioner that contents of the cheque in question were not in his handwriting as well as the order dated 01/05/2008 passed by learned Additional Sessions Court, Mahesana in Criminal Revision Application No.37 of 2008, by which, learned Revisional Court has dismissed the said Revision Application and confirmed the order passed by the learned Magistrate passed below Exh.79 in Criminal Case No.293 of 2004.
2. Respondent No.2 herein – original complainant has filed the Criminal Case No.293 of 2004 against the petitioner herein in the Court of learned Judicial Magistrate, First Class, Mahesana for the offence punishable u/s.138 of the Negotiable Instruments Act. After the evidence of the complainant was recorded and even after the further statement of the petitioner herein - accused was recorded, the petitioner herein – original accused has submitted application Exh.79 requesting to send the cheque in question to the Handwriting Expert by submitting that contents of the cheque in question were not in his handwriting. By order dated 26/02/2008, learned Magistrate has dismissed the said application.
3. Being aggrieved by and dissatisfied with the order dated 26/02/2008 passed by learned Magistrate below Exh.79 in Criminal Case No.293 of 2004, the petitioner herein preferred revision application being Revision Application No.37 of 2008 before the learned Sessions Court, which has been dismissed vide order dated 01/05/2008. Being aggrieved by and dissatisfied with the impugned orders passed by both the Courts below, the petitioner herein – original accused has preferred the present petition under Article 227 of the Constitution of India.
4. Mr.H.B.Champavat, learned advocate appearing on behalf of the petitioner herein – original accused has vehemently submitted that both the Courts below have materially erred in not sending the cheque in question to the Handwriting Expert as it is the specific case on behalf of the petitioner so pleaded in the application that blank cheque was given to the sister of the complainant and contents were filled in by the complainant in his handwriting and contents were not in the handwriting of the petitioner herein – accused. Therefore, it is submitted that to substantiate his defence, learned Magistrate ought to have sent the cheque in question to the Handwriting Expert at the cost of the petitioner. By making above submissions, it is requested to allow the present petition.
5. Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of respondent No.1-State has requested to pass an appropriate order in the facts and circumstances of the case.
6. Having heard learned advocates appearing on behalf of the respective parties and considering the impugned orders passed by both the Courts below, at the outset, it is required to be noted that application Exh.79 was given by the petitioner herein for sending the cheque in question to the Handwriting Expert after the evidence of the complainant was recorded and after further statement of the petitioner herein – original accused was recorded. In the application Exh.79 for the first time the petitioner came out with different case that contents of the cheque in question were not in his handwriting. It is required to be noted that in reply to the statutory notice, it was never the case of the petitioner that contents of the cheque in question were not in his handwriting. Therefore, alleged defence of the petitioner herein – original accused seems to be afterthought.
7. Even otherwise, it makes no difference even if it is found that contents of the cheque in question were not in the handwriting of the petitioner herein – original accused as the petitioner has admitted the signature on the cheque in question and that there is presumption, which is rebutted u/s.139 of the Negotiable Instruments Act with respect to legal debt and liability, which the petitioner – accused is required to rebut. Under the circumstances, it cannot be said that both the Courts below have committed any error and/or illegality in rejecting the application of the petitioner, which calls for interference of this Court in exercise of power under Article 227 of the Constitution of India.
8. In view of the above and for the reasons stated hereinabove, the petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith.
It goes without saying that the present order shall not come in the way of the petitioner herein – original accused in rebutting the presumption u/s.139 of the Negotiable Instruments Act.
[M.R.SHAH,J] *dipti