JUDGMENT :

(Bibek Chaudhuri, J.) : –

1. The accused of case No. C/7703 of 2010 being a proceeding of criminal complaint under Section 138 of the Negotiable Instruments Act (hereinafter described as the said act) is the petitioner before this Court assailing the order dated 27th September, 2021 passed by the learned Metropolitan Magistrate, 5th Court at Calcutta rejecting the petitioner’s application praying for examination of a “questioned document” (Exhibit2) by the handwriting expert with admitted signature of the accused/petitioner on the documents, marked as Exhibit-7/1, Exhibit-8 and 8/1, Exhibit-9 and 9/1.

2. Shorn of unnecessary details, the fact relevant for the disposal of the instant criminal revision is as follows:-

3. The opposite party filed a complaint under Section 138 of the Negotiable Instrument Act against the petitioner in the year 2010 before the learned Metropolitan Magistrate at Calcutta alleging, inter alia, that the complainant deals with a wholesale and retail business of gold jewellery. The accused is also engaged in the same business. The complainant sold and supplied gold jewellery to the accused amounting to Rs.60,59,387/-through their invoice No.4136 dated 19th January, 2010. In discharge of his existing liability, the accused issued one account payee cheque in favour of the complainant/company on 19th January, 2010 drawn on Bank of India Bidhannagar Branch for sum of Rs.60,59,387/-. The complainant duly presented the said cheque for encashment but it was dishonoured vide Memorandum of dishonor dated No.22nd January, 2010. After the said cheque being dishonoured complainant issued legal notice to the petitioner requiring him to pay the said amount in discharge of his debt or existing liability however, the said demand notice was returned with postal endorsement “not claimed”. Subsequently, the complainant filed the complaint under Section 138 of the Negotiable Instrument Act before the learned Chief Metropolitan Magistrate at Calcutta which was registered as C-7703 of 2010. It is pertinent to mention that the aforesaid case is pending for trial before the learned Metropolitan Magistrate, 5th Court at Calcutta.

4. During trial one Dipak Dey as power of attorney holder of the complainant deposed as PW1. During his examination in chief PW1 filed a bill being No.4136 dated 19th January, 2010 for the amount of Rs.60,59,387/-. The said bill was marked as Exhibit-2 during trial of the case.

5. Exhibit-2 was filed in order to prove the existing debt or liability of the accused/petitioner. PW1 also stated in oath that the accused/petitioner issued the cheque in question for the discharge of the existing debt or liability.

6. Veracity of Exhibt-2 was challenged by the accused in course of cross examination of PW1. It was denied emphatically by the accused/petitioner that the accused purchase any gold ornament from the complainant amounting to Rs.60,59,387/-and the said bill was forged and fabricated for the purpose of this case in order to manufacture a case of existing liability against the petitioner.

7. It is the defence of the accused that the complainant and the accused had business relationship and prior to the present dispute having been cropped up, the petitioner purchased gold ornaments from the complainant against bills and vouchers. The petitioner authenticated the said bills by putting his signature thereon. However, Exhibit-2 does not bear the signature of the petitioner. Therefore, the petitioner denied purchasing any gold ornaments amount to Rs. 60,59,387/-against the disputed bill (Exhibit-2). Thus, the petitioner has no debt or liability to the opposite party. Further case of the petitioner is that as per the existing custom prevalent in gold ornament business, a cheque is required to be deposited by the prosecutor to the seller. Accordingly the petitioner at the time of inception of commercial relationship handed over a blank signed cheque to the opposite party/complainant. The opposite par