ORAL JUDGMENT : - The petitioner is challenging the reversal order passed by the III Ad -hoc Additional Sessions Judge, Dhule whereby the revision application preferred by the respondent No. I -accused was allowed and the order passed by the Chief Judicial Magistrate, Dhule dated 17 -12 -2004 at Exh.71 filed by the respondent -accused, was set aside. In the result, by allowing the revision application, the revisional Court has referred the matter for experts opinion as contemplated under section 45 of the Evidence Act.

2. Heard the learned counsel for the petitioner and the learned A.P.P. for the respondent -State. None for the respondent No.1 though served.

3. Admittedly, respondent No. I has not discharged his liability or returned the amount of cheque No. 46075 drawn on Merchant Co -op. Bank, Dhule, which was issued by the petitioner for business purpose. On 5 -2 -2000, the petitioner had deposited the said cheque which was returned back with an endorsement "Funds are insufficient". The cheque was re -deposited in the Bank as per the request of respondent No.1 between the period from 21 -4 -2000 to 30 -5 -2000, but in vain. By notice dated 3 -6 -2000, the petitioner demanded the said amount again. The respondent though served, did not reply the same. On 1 -7 -2000 a complaint was filed under section 138 of Negotiable Instruments Act. By one way or the other, the respondent was delaying the proceedings. There were earlier litigations also between the parties which resulted against respondent No. 1 and even an exemplary costs was also awarded against respondent No.1.

4. The trial ccmmenced on 21 -7 -2002. Respondent No.1 was absent on various occasions. It appears that his right was also forfeited of cross -examination. All his applications for recalling the orders were also rejected with heavy costs.

5. On 1 -11 -2004, respondent No.1 filed an application Exh.71 to refer the cheque in question to an expert for an opinion. The said application was opposed by the petitioner. After considering rival contentions, by reasoned order, the learned C.J.M., Dhule on 17 -12 -2004 rejected the said application. Respondent No.1 preferred the Revision No. 34 of 2005. The revisional Court has allowed that revision and therefore, the present writ petition.

6. The scheme and object of the Negotiable Instruments Act is very clear which is always with a view to see that the parties must fulfil their liabilities and obligations in respect of commercial transactions based on the Negotiable Instruments. In the present case, there remains no doubt that the cheque was bounced and even though notice was issued, respondent No. 1 failed to fulfil his obligations of paying the money. The petitioner, therefore, has invoked the jurisdiction of the Court by filing a complaint under section 138 of Negotiable Instruments Act. The presumption under the Act is very clear. Respondent No.1, therefore, has no substantial defence to oppose the liability as demanded. There are innumerable occasions which are borne out from the record that the respondent has one way or the other protracted the litigation. During the cross -examination he preferred the application for sending the documents to the expert. As rightly pointed out by the petitioners advocate in referring to AIR 1964 SC 529, Shashi Kumar Banerjee and ors. vs. Subodh Kumar Banerjee that even if there is a reference made still the experts opinion cannot be the foundation in such matter specifically, which arose out of Negotiable Instruments Act. Admittedly, this is the case of non -payment based on the cheque, more particularly in the light of section 139 of Negotiable Instruments Act. In this view of the matter and considering the earlier conduct of respondent No. 1 there remains no doubt that the whole purpose of the application (Exh. 71) was to protract the litigation and to avoid to make the payment.

7. The learned C.J.M. after considering the rival contentions between the p

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