1. This criminal revision petition is filed by the petitioner /accused against the order of the Learned Trial Court in dismissing the petition filed under section 45 of the Indian Evidence Act by the order dated 20.01.2017 in C.M.P.No.4454 of 2016 in STC.No.131 of 2016 on the file of the learned Fast Track Magisterial Level No.2, Poonamallee, Tiruvallur District.

2. The brief case of the Revision Petitioner:

One Daniel, the husband of the revision petitioner/accused approaches the complainant to sell his house. The sale consideration was agreed and fixed the rate of Rs.40,00,000/- and on 11.10.2010, the husband of the revision petitioner/accused executed a power of attorney in favour of the respondent/complainant and issued credit receipt for Rs.40,00,000/-. The husband of the revision petitioner/accused failed to hand over to the property to the respondent/complainant and lease out to third party and demand to cancel the power of attorney for selling the property. The respondent/complainant after repeated demands to the husband of the revision petitioner/accused to settle of the amount of Rs.77,20,000/- The revision petitioner/accused has issued three postdated cheques on behalf of her husband.

3. The revision petitioner/accused filed miscellaneous petition in CMP.No.4454 of 2016 under section 45 of the Indian Evidence Act stating that there is no privities to contract between him and the respondent. The contents and numerical found in the cheque was not filled by the revision petitioner. She never issued cheques Exhibit P4 to P6 in favour of the respondent/complainant. Therefore the cheques Exhibit P4 to P6 for obtaining expert opinion is to be sent for forensic department.

4. The brief case of the respondent is that:

The respondent/complainant filed his objections alleging that proof affidavit was filed before the trial Court on 27.09.2016 and his evidence was closed on the same day for non cross-examination. The revision petitioner/accused filed petition under Section 311 of Cr.P.C. to recall the respondent/complainant for cross examination on 11.11.2016 and filed the present petition under section 45 of the Indian Evidence Act. The signature in the cheque has not been disputed by the revision petitioner/accused and hence the cheque is valid as per Section 20 of the Negotiable Instruments Act. The revision petitioner/accused filed this petition just to protract the proceedings and prayed this Court for dismissal of this petition.

Rival submissions:

5. The learned counsel for the Revision Petitioner contends that the trial Court failed to consider the complainant’s own admission will prima facie reveal there exist no liability between the Revision petitioner/accused and the respondent, hence the essential ingredients to constitute offences under section 138 will not attract, that therefore the Revision Petitioner/Accused would not have issued Exhibits-P4 to P6 to the Respondent which could be proved and substantiated only by way of expert opinion.

6. The Learned counsel for the Revision Petitioner contends that the trial Court had erroneously dismissed the petition for the only reason as premature when in no defense has been raised by the Revision Petitioner/Accused will prove that the Trial Court failed to appreciate the fact the Respondent himself have admitted the alleged transaction was between the Revision Petitioner’s/accused husband and him, that being the case absolutely there are all possibilities of misusing the cheques Ex P4 to P6 whose scripts (both alphabetical as well as numerical) therein were disputed by the Revision Petitioner/Accused herein as stated in the petition which warrants an opinion from the hand writing expert to prove the innocence of the Revision Petitioner/Accused who did not issue Exs-P4 to P6 in favour of the Respondent/complainant.

7. The Learned counsel for the Revision Petitioner contends that the trial Court failed to appreciate the fact that the signed unfilled cheques of the Revision