JUDGMENT :

Shampa Dutt (Paul), J.

1. The present revision has been preferred against an order dated 19th March, 2019 passed by the Learned Judicial Magistrate, Bidhannagar, North 24 Parganas in connection with Complaint Case No. C-687 of 2016 under Section 138 of the Negotiable Instruments Act, 1881, thereby rejecting the Petitioners’ prayer for obtaining an opinion of the handwriting expert in respect of the impugned cheque.

2. The prosecution case as alleged is to the effect that :

The Accused/Petitioner in order to discharge his liability in part issued an A/C Payee Cheque, bearing Cheque No. 111313 dated 30.09.2013, drawn on State Bank of Hyderabad, Brabourne Road Branch, Kolkata for an amount of Rs. 3,10,000/-. The Complainant deposited the same with his banker within its validity period but the same was returned with an endorsement ‘Funds Insufficient’. Thereafter, the Complainant on 20th December, 2013 sent the demand notice by Registered post with A/D to the Accused/Petitioner, thereby demanding the amount covered by the dishonoured cheque to be paid within 15 days from the date of receipt of the notice. The Accused/Petitioner even after receipt of the notice failed and/or neglected to pay the demanded amount and thereby committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

3. On receipt of the petition of complaint, the Learned Additional Chief Metropolitan Magistrate, Calcutta was pleased to take cognizance of the offence and was further pleased to transfer the case to the Learned Metropolitan Magistrate, 20th Court, Calcutta for further enquiry, trial and disposal of the same.

4. In course of trial of the instant case, the Complainant/Opposite Party in order to prove its case adduced himself as a witness and exhibited number of documents in support of his case. That in course of cross examination of the Complainant/Opposite Party, specific question has been put to him regarding palpable alteration as it appeared from the impugned Cheque, which he denied.

5. While adducing evidence on behalf of the Complainant /Opposite Party especially upon exhibiting the impugned cheque and by manipulating dates, validity of the same has been extended. Under such circumstances, the Accused/Petitioner preferred an application before the Learned Magistrate, thereby praying for examination and opinion of the handwriting experts in respect of the impugned cheque.

6. That the Learned Magistrate upon hearing the Learned Advocates appearing for both the parties as well as upon perusing the materials on record in a mechanical manner, vide an order dated 19th March, 2019, was pleased to reject the application preferred by the Accused/Petitioner, with an observation that the application preferred by the Accused/Petitioner is a premature one and the Accused/ Petitioner cannot supersede a stage to facilitate his prayer. The Accused/Petitioner states that the instant case is pending at the stage of his examination under Section 313 of Code of Criminal Procedure, 1973 and next date is fixed on 17th January, 2020.

7. It is submitted that the Learned Magistrate while passing the impugned order did not take into consideration that the issue for which the Accused/Petitioner preferred the application for examination and opinion of handwriting experts in respect of the impugned cheque, is the very genesis of the instant case. The issue not only pertains to forming defence of the Accused/Petitioner for rebutting the Complainant’s case but also for ensuring true and proper administration of justice in connection with the instant case. It is needless to mention that while dealing with this kind of application/issues, the discretion available to the Learned Magistrate is a judicial discretion and the same has to be exercised in a most judicious manner, which has been denied of in the instant case. The learned Magistrate while passing the impugned order failed to appreciate that judicial discretion/obligation available to him ca