The court clarified that an order allowing expert opinion under Section 45 of the Evidence Act is an intermediate order affecting rights, not merely interlocutory, and the court cannot collect evidence for the accused.

JUDGMENT :

Virender Singh, J.

Petitioner-Rajeev Sharma has filed the present revision petition, under Section 397 read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.PC’) against the orders dated 05.02.2024 and 30.03.2024, passed by the Court of learned Chief Judicial Magistrate, Hamirpur, District Hamirpur, H.P. (hereinafter referred to as the ‘trial Court’), in Case No.55-I-14 RBT 41-I-2019, titled as Rajeev Sharma versus Pradeep Kumar.

2. By way of order dated 05.02.2024, Cr.MA No.267 of 2016, i.e. application, filed by respondent Pradeep Kumar, under Section 45 of the Indian Evidence Act, has been allowed, and Cr.MA No.169 of 2024 i.e. application, filed under Section 311 of Cr.PC, has been dismissed, by the learned trial Court. The order, by way of which, application, under Section 45 of the Indian Evidence Act, has been allowed, is being challenged before this Court.

3. For the sake of convenience, the parties to the present lis are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.

4. Brief facts, leading to the filing of the present revision petition, before this Court, may be summed up, as under:-

4.1. Complainant Rajeev Sharma, has filed a complaint, under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as ‘the N.I. Act’), regarding cheque No.429789, dated 31.03.2014, amounting to Rs.5,00,000/-, drawn on Kangra Central Co-operative Bank, Branch Pucca Bharoh-168, Hamirpur (hereinafter referred to as ‘the cheque in question’).

4.2. According to the complainant, the accused owes debt and liability, as such, in order to discharge his legal liability, he has issued the cheque, in question, which, on production, before the banker of the accused, for encashment, was received back, uncashed, with the remarks ‘insufficient funds’.

4.3. Thereafter, the requisite legal notice was served and despite service of the notice, when the payment was not made, the complaint was filed before the learned trial Court.

4.4 The learned trial Court, finding a prima facie case, on the basis of the preliminary evidence, passed the summoning order on 26.9.2014. After securing the presence of the accused, the learned trial Court has found sufficient grounds to proceed against the accused for commission of offence, under Section 138 of the N.I. Act. As such, Notice of Acquisition was put to him vide order dated 03.08.2015, to which, he has not pleaded guilty and claimed trial. Consequently, the complainant was directed to adduce evidence. After closure of the evidence, the case was listed for the statement of accused, under Section 313 of the Cr.PC.

4.5. On 27.07.2016, an application under Section 45 of the Indian Evidence Act was moved by the accused, for expert opinion of handwriting expert regarding signatures of accused on the cheque in question. It has been pleaded that the cheque, in question, be sent to handwriting expert along with signature of the accused.

4.6. According to the accused, the cheque in question, had been lost and in this regard, he had also lodged rapat with Police Station, Hamirpur. According to him, no cheque has ever been issued by the accused in favour of the complainant and the cheque in question does not bear the signature of he accused. Hence, a prayer has been made to allow the application.

4.7. The application has been contested by the complainant by denying the fact that the application is not maintainable, as, the case, at the relevant time, when application, under Section 45 of the Indian Evidence Act, was filed, was listed for recording the statement of accused, under Section 313 Cr.PC and the accused could lead defence evidence, at the appropriate stage.

4.8. The application had further been contested on the ground that the cheque, in question, was returned with the remarks ‘insufficient funds’ and not on the ground that the signature has not tallied, as such, according to the complainant, no useful purpose would be