ORDER :

1. By way of this application, the applicant challenges the order passed below Exh. 198, dated 06.12.2021 in Criminal Case No. 1048 of 2003, by the learned 19th Additional Chief Judicial Magistrate, Surat and order of the Revisional Court dated 22.03.2022, whereby, the courts below rejected the prayer of the applicant to refer the documents like challan, disputed cheque and bank slip for opinion of the handwriting expert.

2. The facts giving rise to this application may be summarized as under :

(i) The respondent no. 1 complainant has filed a complaint under Section 138 of the Negotiable Instrument Act, against the accused applicant and his wife, which is numbered as CC No. 1048 of 2003.

(ii) The trial Court has recorded the evidence of respondent no.1 complainant at Exh. 18, whereas, the applicant herein entered into witness box to prove his defence vide Exh. 99.

(iii) After filing closing purshis by the complainant, further statement of accused herein was recorded and after hearing both the parties and after appreciating the oral as well as documentary evidence, the learned trial Court vide order dated 14.10.2016, acquitted the applicant and his wife. Being aggrieved with the judgment of the acquittal, the complainant, preferred Acquittal Appeal before the High Court (Criminal Appeal No. 96 of 2017). Vide order dated 17.01.2019, the coordinate bench of this Court quashed the order of acquittal and remanded back the case, for limited purpose.

(iv) Vide Exh. 198, the accused applicant herein moved an application to refer two challans Exh. 186 and 187, cheques Exh. 25 and 26, and bank slip Exh. 125 for the opinion of the handwriting experts to verify the signatures, as, there is dissimilarity in the words mentioned in the cheques.

(v) Learned trial Court after hearing the parties and considering the law on this aspect, rejected the application, observing that when there is no dispute regarding signature of the cheques, application was being filed with a view to protract the trial.

(vi) Aggrieved by the impugned order dated 06,.12.2021, passed below Exh. 198, the accused applicant herein, preferred Revision Application before the learned Sessions Judge, Surat, who vide order dated 22.03.2022 concluded that the revision petition was bereft of any merit and accordingly dismissed the same.

3. In the aforesaid facts, the applicant herein has come-up before this Court by preferring the present petition.

4. This Court has heard learned counsel Bomi Shethna, Daifraz Havawala, and Mr. Manan Mehta, learned APP for the respective parties.

5. Mr. Bomi Shethna, learned advocate for the applicant submitted that both the courts below committed serious error in passing the impugned orders. He submitted that accused herein denied the execution of challans and alleged that it was fabricated by the complainant, whereas, the bank slips also bears the signature of the son of the complainant Amit Naran and there is a mismatch in the signature of the cheque as well as challans and therefore, opinion of the expert is relevant upon point of identify of hand writings. In this context, it was submitted that the entire basis of the matter is on the premise that cheque was discounted by the complainant and pursuant to the same, challan was issued by the complainant and it was accepted by the accused by putting his signature on the said challan and thus, legal debt accrued on the accused. In the case filed under the provisions of Section 138, the presumption under Section 139 of the NI Act, indicates that there is legal presumption that the cheque was issued for discharging the liability and same can be rebutted by the person who draws the cheque and therefore, to rebut the presumption, the accused should be given proper opportunity which is a basic principle of the trial. Learned courts below while rejecting the application, did not consider this very aspect of principle of fair trial and therefore, interference by this Court is required. It was further subm