The need to give the accused a fair chance to substantiate the defense and the limited scope of interference under the extraordinary jurisdiction of the Court.

C.V. Bhadang, J. –

Rule.

Rule made returnable forthwith. Mr. Lobo, learned Counsel waives service for the respondent no. 1. Heard finally, by consent of the parties.

2. All these petitions involve common and connected questions of law and fact. They are between the same parties. As such, they are being disposed of by this common judgment.

3. The petitioner is a complainant in three different cases filed against the respondent no. 1 under Section 138 of the Negotiable Instruments Act, 1881 (the N.I. Act, for short). It is contended that three cheques were issued by the respondent no. 1, towards legally enforceable liability, which were dishonoured on account of insufficient funds, which led the petitioner to proceed against the respondent no. 1, under Section 138 of the N.I. Act.

4. According to the respondent no. 1, he had obtained a hand loan of Rs. 25,000/- from the petitioner and had agreed to repay the said amount with interest at the rate of 10% per month. It is contended that by way of security, the respondent no. 1 had handed over five blank cheques, duly signed by him. It is contended that although, the amount was returned along-with interest of Rs. 2,500/-, the petitioner failed to return the cheques. It is contended that the petitioner got the cheques filled in with three separate amounts, namely, Rs. 2,00,000/-, Rs. 6,00,000/- and Rs. 3,00,000/- and thereafter filed the complaints.

5. Undisputedly, the respondent no. 1 had earlier filed an application, seeking reference of the subject cheques for opinion of the handwriting expert, which was rejected by the learned Magistrate by an order dated 26.11.2014, on the ground that the petitioner/complainant was yet to begin the evidence and as such, the application was premature. Subsequently, after the petitioner led his evidence and the statement of respondent no. 1 was recorded under Section 313 of the Criminal Procedure Code, yet another application came to be filed, for referring the subject cheques for opinion of the handwriting expert. That application has been allowed by the learned Magistrate by order dated 27.04.2015. Feeling aggrieved, the petitioner is before this Court.

6. I have heard Mr. Redkar, learned Counsel appearing for the petitioner and Mr. Lobo, learned Counsel appearing for the respondent no. 1. I have perused the impugned order, as passed.

7. It is submitted by Mr. Redkar, the learned Counsel for the petitioner that two successive applications were not permissible. In this regard, reliance is placed on the decision of the Hon'ble Apex Court, in the case of G. Someshwar Rao v. Samineni Nageshwar Rao and Another, reported in (2009) 14 SCC 677. It is next submitted that Section 138 of the N.I. Act does not require that the cheque should be filled in by the accused. It is thus, submitted that when the signature on the cheque was admitted, the learned Magistrate had no reason or justification, for sending the cheques for the opinion of the handwriting expert. The learned Counsel has placed reliance on the decision of this Court in the case of Shri Prakash Sevantilal Vora v. State of Maharashtra and Another, (2011) Cr.L.J. 2207. It is therefore, submitted that the impugned order be set aside.

8. On the contrary, it is submitted by Mr. Lobo, the learned Counsel for the respondent no. 1 that, the respondent no. 1 had come with a specific defence that the blank cheques were handed over to the petitioner with the signature of respondent no. 1. It is submitted that the material defence pertains to the amount which is due, as on the date, on which the cheques are shown to be issued. It is submitted that it is the specific case of the respondent no. 1 that he had handed over the cheques to the petitioner, which were only signed, but, were not filled in. In that view of the matter, in order to substantiate the defence, reference of the subject cheques, for the opinion of the handwriting expert is necessary. Reliance is placed on the decision of the Hon'ble Apex