The central legal point established in the judgment is that the application for sending the cheque to a Forensic Expert should be based on valid grounds and not used as a ploy to delay the trial.

1. Rule. Rule made returnable forthwith, with the consent of the parties. Counsel for Respondents waive service of notice.

2. Heard learned counsel for the parties.

3. The applicant has impugned the order dated 25th April, 2014, passed by the learned Metropolitan Magistrate, 56th Court, Mazgaon, Mumbai, below Exhibit -83 in C.C.No.2856/SS/2012.

4. Before adverting to the impugned order, it would be necessary to place on record the following facts :-

It appears that an application was previously preferred by the respondent no.2 herein i.e. Stonemannn Royale Limited, before the learned Metropolitan Magistrate, Exhibit - 73 praying therein for calling an expert to examine the age of the ink in respect of the writing on the cheque. In the said application, Exhibit - 73, the respondents -accused had prayed that the Court should appoint a Forensic Expert to examine the age of the ink in respect of the subject cheque, exhibited by the complainant, being Cheque No.041245 drawn on IDBI Bank, purported to be issued by the accused in above proceedings and called for the report/opinion from the Forensic Expert. The learned Magistrate had observed that the dispute regarding the signature of drawer who had scribed the cheque, was not material and that the cheque being about 2 years old, the application was filed only to prolong the trial and accordingly, rejected the said application, being Exhibit - 73, vide order dated 6th February, 2014.

Against the said order passed below Exhibit - 73, the Respondents -Accused filed a Writ Petition in this Court, being Writ Petition No.670 of 2014. This Court vide order dated 25th March, 2014 observed that the prayer clause was not properly drafted and that the Court was not empowered to appoint a Forensic Expert. Accordingly, the Counsel for the Respondents Accused withdrew the Criminal Writ Petition No.670 of 2014, with liberty to file a fresh application before the concerned Magistrate by making a specific prayer for sending the cheque to the Forensic Expert. It was observed in the said order that the learned Magistrate shall consider the said application on merits and decide the same within two weeks from the date of filing of the application. Accordingly, the Writ Petition was dismissed as withdrawn, with liberty as prayed for. Pursuant to the said order dated 25th March, 2014, passed by this Court in Criminal Writ Petition No.670 of 2014, the respondents -accused preferred a fresh application in the Court of learned Metropolitan Magistrate, Mazgaon, Mumbai and prayed that the cheque be sent to the Forensic Expert, for examination of the age of the ink of the entries on the cheque i.e. the signature of the drawer and the amount entered in words and figures in the said cheque and for calling of the report/opinion from the Forensic Expert. The said application was strongly resisted by the petitioner - original complainant herein by filing their say.

The learned Metropolitan Magistrate, 56th Court, Mazgaon, Mumbai, after hearing the parties was pleased to pass the impugned order dated 25th April, 2014, below Exhibit -83 in C.C.No.2856/SS/2012. Thus, vide the said order, the Trial Court allowed the application preferred by the Respondents - Accused.

5. Learned Counsel for the Petitioner contended that the learned Judge has not exercised the discretion vested in him, in the facts of the case. He submitted that although, this Court had permitted the respondents -accused to prefer a fresh application, the said application was to be decided in accordance with law. He submitted that there was no foundation laid by the respondents - accused for sending the cheque to the handwriting expert/forensic expert. He relied on a letter sent by the respondents -accused to the complainant, dated 22nd May, 2012. In the said letter (Exhibit - 29), the respondent -Jagat Chandulal Shah, Director of Stonemann Royale Limited, has specially stated as under:-

"We do admit that we have issued the Cheque bearing No