IMPORTANT POINT
Where in a prosecution for dishonour of cheque the accused admitted his signature of cheque and prayed for sending cheque to FSL for report of handwriting expert for other matter/writing in the cheque alleging cheque to be stolen one but no reply was sent to demand notice request deserved to be disallowed.

Gopal Krishan Vyas, J.—In this misc. petition filed under Section 482 CrPC, the petitioner is challenging the order dated 11.6.2008 passed by Sessions Judge, Churu in Criminal Revision No. l27 of 2007 by which the learned Sessions Judge, Churu affirmed the order dated 10.9.2007 passed by Chief Judicial Magistrate, First Class, Churu in Criminal Case No.252 of 2007 (276 of 2005) whereby learned Trial Court dismissed the application filed by the petitioner under Section 45 of the Evidence Act.

2. Brief facts of the case are that in a case filed against the petitioner under Section 138 of NI Act, the petitioner filed an application under Section 45 of the Evidence Act with the prayer that cheque in question may be sent to FSL for handwriting report. The said prayer was made by the petitioner on the ground that stand of the petitioner in the proceedings in that cheque in question signed by him was lost and he published a notice in the newspaper despite that bank returned the said cheque to the complainant with the remark of insufficient fund instead of informing the petitioner.

3. In the application, filed by the petitioner under Section 45 of the Evidence Act, it is prayed that though the petitioner is admitting his signature upon the cheque but for the purpose of ascertaining other handwriting of the cheque, the matter may be sent to the hand writing expert. But learned Trial Court dismissed the said application on the ground that the petitioner is admitting his signature upon the cheque and took defence that the said cheque was lost but bank has returned the cheque with the report of insufficient funds, therefore, if the petitioner is admitting his signature upon the cheque then only on the basis of the defence taken by the petitioner, it is not necessary to send the cheque to the handwriting expert for the purpose of taking opinion for other handwriting on the cheque except the signature.

4. Learned counsel for the petitioner submits that the application filed by the petitioner was dismissed by the Trial Court on 10.9.2007, against which, the petitioner preferred a revision petition, that too, has been dismissed by the Revisional Court vide order dated 11.6.2008, which is illegal and have no foundation to stand because for the purpose of petitioner’s defence, it was the duty of the learned Trial Court to sent those documents to ascertain the hand-writing upon the cheque but learned Trial Court has failed to exercise its jurisdiction left with the Court under Section 45 of the Evidence Act. Therefore, both the orders passed by the Trial Court as well as by Revisional Court deserves to be quashed and a direction may be issued to the Trial Court to send the cheque to the hand-writing expert to ascertain the hand-writing upon the cheque except signatures. Learned counsel for the petitioner has invited the attention of this Court towards the judgments reported in 2006 (2) R.Cr.D. 238 (Raj.): 2007 Cri LR (SC) 453: 2007 Cri LR (SC) 457: RLW 2009 (1) (Raj.) 167: 2008 AIR SCW 3349: 2008 AIR SCW 1691 and 2009 (3) WLC (Raj.) 132.1

5. Per contra, learned counsel appearing on behalf of respondent argued that the application under Section 45 of the Evidence Act has been filed by the petitioner only to delay the trial of the case because when initially after dishonour of the cheque when notice was sent to the petitioner by the complainant, then no reply was given by him and after filing complaint in the Court he is taking defence while admitting his signatures upon the cheque. Meaning thereby, the defence now taken by the petitioner that cheque in question was lost, therefore, the cheque may be sent to the hand-writing expert, is not tenable. Learned Trial Court has rightly observed that the petitioner is not disputing his signatures upon the cheque and other grounds shall be considered at the time of final adjudication, therefore, there is no error in the orders impugned passed by both the Courts below.

6. I have considered the ri