The genuineness of the alleged compromise entered into between the accused and the complainant in a case under Section 138 of the Negotiable Instruments Act must be proven, and the accused should be given the opportunity to take the assistance of a handwriting expert for this purpose.

1. Animadverting upon the order dated 29. 2005, passed by the Judicial Magistrate No.II-cum-Special Magistrate, Attur, in Crl.M.P.No.6067 of 2005 in C.C.No.125 of 2002., this criminal revision case is focussed.

2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus:-

The respondent herein filed the C.C.No.125 of 2002 before the Judicial Magistrate No.II-cum-Special Magistrate, Attur, for the offence under Section 138 of the Negotiable Instruments Act. During the pendency of the case, Crl.M.P.No.6067 of 2005 was filed by the petitioner/accused, so as to enable him to get the assistance of a hand writing expert to examine and verify as to whether the signature found in the alleged receipt issued by the complainant is that of the complainant or not. The learned Magistrate dismissed the application. Being aggrieved by and dis-satisfied with the said order, this revision has been filed on various grounds, the gist and kernal of them would run thus:-

The learned Magistrate instead of giving due opportunity to the accused to put forth his defence, simply dismissed the prayer of the accused to take the assistance of the hand writing expert.

3. Heard both sides.

4. The point for consideration is as to whether for the reasons set out in the revision petition, the order of the lower Court has to be set aside and the accused should be given the opportunity to take the assistance of a hand writing expert, so as to verify as to whether in the alleged receipt, the signature found is that of the complainant or not.

5. The learned counsel on both sides, in unison would submit that on earlier occasion, a similar petition was filed by the accused for the purpose of taking the assistance of a hand writing expert and at that time, the lower Court dismissed the application on the ground that at the later stage this application would be considered. When the present criminal M.P.No.6067 of 2005 was filed for taking the assistance of the hand writing expert for the above said purpose, the learned Magistrate dismissed the application on the ground that the alleged receipt is having nothing to do with the proving of the offence by the complainant, as the Court was concerned only with the factum as to whether offence under Section 138 of the N.I.Act was committed or not.

6. Ex facie and prima facie it is clear that the approach of the learned Magistrate is not correct. It appears, the learned Magistrate proceeded on the footing that he was enjoined as per law to decide as to whether the accused committed the offence under Section 138 of the N.I.Act or not by refusing to respond to the statutory notice as per law. The learned Magistrate also was of the view that only relating to the genuineness of the alleged cheque involved in the criminal case, he could prove and not in respect of the alleged compromise entered into between the accused and the complainant.

7. In my opinion when the law is well settled that even the offence under Section 138 of the N.I.Act could be compounded and the accused comes forward with the case that he already got the matter compounded with the complainant, necessarily, the Magistrate should give a verdict on that as to whether out side the Court such compounding took place or not. Hence, it is crystal clear that it is a fit case for interference and necessarily the accused must be given due opportunity of taking the assistance of hand writing expert, as per law.

8. In the result, the order dated 29. 2005, passed by the Judicial Magistrate No.II-cum-Special Magistrate, Attur, in Crl.M.P.No.6067 of 2005 in C.C.No.125 of 2002 is set aside and the criminal revision case stands allowed as under:

At the first instance, the petitioner/accused shall secure before the Court his own one or two anti motum litem signatures; whereupon, the lower Court shall appoint an Advocate Commissioner for the following purpose.

(a) To carry the