The examination of handwriting expert is not necessary in a case under Section 138 of the Negotiable Instruments Act if the signature on the cheque is admitted by the accused, and the body of the cheque could be filled up by anybody as long as it is signed by the account holder.

1. By consent of both sides, the revision itself is taken for hearing.

2. The petitioner is facing trial in C. C. No. 151/2000 before the trial Court for the alleged offence said to have been committed by him u/S 138, Negotiable Instruments Act, (in short, N. I. Act). It seems the accused/petitioner had issued a cheque for Rs. 3,95,000. When the cheque was tendered by the respondent for collection through his Bank where he is having account, the cheque bounced on the ground ‘insufficient funds’. Thereafter, notice has been issued which was acknowledged but not replied. Though time is given, within the time stipulated, amount also has not been paid. In the above said circumstances, the holder of the cheque namely the respondent herein, preferred a complaint before the concerned Magistrate, complaining of the offence u/S. 138, N. I. Act. After appearance of parties the Trial Court also completed the prosecution side examination of witnesses, thereafter questioning the accused u/S. 313, Cr. P. C. As represented by the learned counsel for the petitioner, two witnesses have also been examined on the defence side. At this stage, the accused had filed petition before the trial Court, seeking the permission of the Court to examine Ex. P-2 and Ex. R-4 by handwriting expert, in order to ascertain the genuineness of the documents. The learned Judicial Magistrate after considering the facts and circumstances of the case, supported by legal position, held that the petition is not maintainable since, there is no need to compare the above exhibits by a hand writing expert, and in this view, dismissed the petition, in view of the admitted fact that the petitioner had not disputed his signature in Ex. P-2/cheque, which order is under challenge in this revision.

3. The learnedcounsel for the petitioner submits that the Trial Court ought to have given, sufficient opportunity for the petitioner to make out a case, proving that the body of the cheque was not written by him, which could be done only by the examination of the disputed document with some admitted document, having the to hand writing of the accused.

4. On the other hand, the learned counsel for the respondent submits that the evidence on record are sufficient to decide the case one way or the other and the opinion of the hand writing expert is not necessary to decide the case, in view of the fact, that accused had admitted his signature in the cheque.

5. As rightly submitted by the learned counsel for the respondent, which is not disputed by the learned counsel for the petitioner, Ex. P-2/cheque does contain the signature of the petitioner, thereby admitting that the cheque leaf belongs to the petitioner, and he had subscribed his signature in the cheque. The only contention appears to be that the body of the cheque was not written by the petitioner/accused. To have validity for the Negotiable Instruments, such as cheque, it is not mandatory and no law prescribes that the body of the cheque should also be written by the signatory to the cheque. A cheque could be filled up by anybody and if it is signed by the account holder of the cheque, accepting the amount mentioned therein. In this case, the signature of the cheque Ex. P-2 is admitted by the petitioner. Therefore, by comparing the handwritings, namely the body of the cheque as well as admitted hand writing of the petitioner, it is not going to tilt the balance of the case in anybody’s favour. It a ll depend upon the liability and under what circumstance the cheque was issued. In this case the complaint does contain all the requirements warranting a proceedings under Section 138, N. I. Act. By the examination of the witnesses, if the petitioner/accused feels that the cheque does not contain his handwriting, he can prove the same, whether it Will affect the case of the respondent/complainant or not. Therefore, considering the admitted position as well as the conduct of the parties, and the stage of the trial. I do not fi