A.M. Thipsay, J.

1. Rule.

2. By consent, Rule made returnable forthwith.

3. By consent, heard finally.

4. The petitioner is the accused in Sessions Case No.875 of 2010 pending before the Judicial Magistrate, First Class, Nashik. The case is in respect of an offence punishable under section 138 of the Negotiable Instruments Act, and arises on a complaint filed by the respondent no.1 herein.

5. The petitioner is aggrieved by an order dated 17th April 2012 passed by the Magistrate, Nashik, rejecting the petitioner's application (Exhibit-43) for sending certain documents tendered by him in evidence, to the handwriting expert for examination and his opinion. The petitioner had challenged the said order by filing an application for revision in the Court of Sessions, but the Revision Application came to be dismissed. It is under these circumstances, that the petitioner has approached this Court by filing the present petition, invoking the jurisdiction of this Court under Article 227 of the Constitution of India, and its inherent powers, praying that the orders passed by the Magistrate and the Sessions Judge, be set aside and that the petitioner's application (Exhibit-43) be allowed.

6. I have heard Mr. Nilesh Zalte learned counsel for the petitioner. I have heard Mr. Tushar Sonawane, learned counsel for the respondent no.1. I have gone through the petition and the annexures thereto.

7. For the sake of convenience, the petitioner shall be hereinafter referred to as 'the accused' and the respondent no.1 as 'the complainant'.

8. When the accused made the application at Exhibit-43, the case before the Magistrate was for adducing the defence evidence. The case of the accused was that he had already repaid the amounts taken by him from the complainant, and therefore, the cheque in question could not be said to have been issued for the discharge of any liability. The accused had tendered five documents (termed as 'debit vouchers') in his evidence which were marked, and exhibited as 'Exhibits-35, 36, 37, 38 and 39'. According to the accused, the said vouchers were signed by the complainant, indicating receipt of the amounts mentioned in these vouchers by the complainant. The complainant had disputed the genuineness of the said vouchers, and had denied that the vouchers contained the signatures of the complainant. The accused had also pointed out that during the cross-examination of the defence witness, the complainant had suggested and alleged that the signatures of the complainant on those documents, were bogus. The accused had, therefore, prayed to the Magistrate that the relevant signatures on those documents were required to be compared with the admitted signatures of the complainant which were available on the record of the case, and that therefore, it was necessary to forward the said documents along with the admitted signatures to an expert for his opinion on the identity or otherwise of the signatures.

9. The prayer made by the accused was reasonable and proper.

10. In the impugned order, the Magistrate held that the accused had no genuine dispute about the said documents, inasmuch as, had it been so, the accused would have filed the application (Exhibit-43) at the earlier stage i.e. after his appearance. The Magistrate observed that this conduct of the accused showed his intention to delay the matter. The Magistrate noted the defence of the accused i.e. 'that he had paid the entire amount of the cheque, and that the complainant had acknowledged the same by making his signatures on the said documents', but held that the signature of the complainant on the alleged documents could be compared with his signatures available elsewhere on record by the Magistrate himself, and that therefore, there was no 'just and proper reason to refer the alleged documents to handwriting expert for an opinion.' While dismissing the revision application, the learned Addl. Sessions Judge did not apply his mind to the real question that was involved i.e. 'whethe