JUDGMENT :

1. The petitioner is an accused in Criminal Case No.87 of 2019 filed by the respondent No.2 before the Court of learned J.M.F.C., Gandhinagar under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the NI Act”). The petitioner seeks to challenge the order passed by the learned 3rd Addl. Sessions Judge, Gandhinagar in Criminal Revision Application No.29 of 2021 whereby, the revisional Court rejected the application of the petitioner wherein he had made a prayer for sending the cheque to F.S.L. for opinion of the Hand-writing Expert and forensic science opinion qua the ageing and writing on the cheque.

2. Learned advocate Mr. Jadeja submitted that the rejection of the application has led to the denial of opportunity of defence and fair trial. Mr. Jadeja stated that the petitioner accused was duped by his friend in collusion with the complainant of complaint filed under Section 138 of the NI Act. The petitioner submits that the complainant had alleged that the petitioner became his friend through one Amratbhai Gopalbhai Patel and under the friendship, the present petitioner had demanded an amount of Rs.10 Lacs, which, he had assured to return within a year. Since he had failed to return the money that was lent by the complainant to the present petitioner, the petitioner gave him a cheque dated 25.10.2018 and informed him to deposit the same day so that he would get his money so noted in the cheque. On deposit of the cheque, it got returned with the endorsement of “Account closed” and therefore, the complainant issued Notice to the petitioner and lodged the complaint.

3. Mr. Jadeja submitted that the petitioner denied the charge and therefore, the trial Court proceeded to adjudicate the matter. During the course of trial, the petitioner gave an application Exhibit-32 for Hand-writing expert’s opinion qua the ageing of ink and writing on the cheque as well as opinion of Hand-writing expert to avail the benefit of defence.

4. Mr. Jadeja submitted that from the very beginning, it was the case of the petitioner that the cheque was obtained by his partner Amratbhai Gopalbhai Patel, who was in need of money and he wanted to show the cheque for the purpose of security to the complainant, who was in the business of lending money. He stated that it was the specific case of the petitioner that cheque was given to his Ex-partner and thus, the cheque was not for any existing debt or liability. He stated that grievance was raised before the trial Court by moving application Exhibit-32 in Criminal Case No.87 of 2019 but the trial Court rejected the same vide order dated 12.06.2019. Aggrieved by the same, Criminal Misc. Application No.56 of 2019 was moved before the Sessions Court, Gandhinagar and the Sessions Court allowed the revision application on 26.09.2019 and set aside the order and remanded the matter to decide application Exhibit-32 afresh in accordance with law. Upon adjudicating application Exhibit-32, Mr. Jadeja stated that the trial Court, without assigning any reasons, decided the application Exhibit-32 on 04.03.2021. Aggrieved by the order, Criminal Revision Application No.29 of 2021 was filed before the Sessions Court, which came to be dismissed on 23.08.2021.

5. Mr. Jadeja submits that the accused has the right to defend himself and in the process of raising a bonafide and probable defence, he had filed the application. According to the petitioner, the cheque was signed in the year 2011 and if such a defence of the accused is supported by the opinion of the expert, then it would certainly shift the burden from the accused to the complainant. He submitted that the proposition of law under Section 138 of the NI Act, which is to be read along with presumption under Sections 139 and 118 of the NI Act requires rebuttal evidence and therefore, he stated that fair opportunity ought to have been granted by both the Courts below.

6. In support of his arguments, Mr. Jadeja relied upon the following judgments:

(a)