Hon'ble Smt. Indrani Datta, J.

1. With the consent of learned Counsel for the parties, heard finally.

2. This revision has been preferred under Sections 397, 401 of Cr.PC for setting aside order dated 26-4-2010 passed by Fourteenth Additional Sessions Judge, Gwalior, in Criminal Revision No. 170/2010, whereby revision is partly allowed setting aside order dated 23-3-2010 passed by JMFC, Gwalior, in Criminal Case No. 9681/08 rejecting the application filed under Section 45 of the Evidence Act by the respondent/accused.

3. Facts in brief are that applicant/complainant filed one complaint against the respondent for the offence punishable under Section 138 of the Negotiable Instrument Act (in short 'the Act') on the allegation that cheque No. 158992 issued by respondent was dishonoured by the bank with an endorsement "stop payment" on the intimation given to bank by respondent/accused. Thereafter, despite issuance of notice when the amount was not paid by respondent/accused, complaint was filed.

4. During trial when the case was fixed for defence evidence, two interlocutory applications were filed by respondent; one under Section 45 of the Evidence Act and another under Section 311 of Cr.PC before Trial Court on the ground that though disputed cheque bears his signature, but other contents of the cheque concerning date, amount etc., are not in his handwriting, hence, report of Handwriting Expert be called for. It was further prayed that complainant and witness be recalled for further cross-examination. Learned Trial Court rejected both the applications. In the revision, learned Revisional Court dismissed the application filed under Section 311 of Cr.PC on the ground that grounds specified for recalling complainant and witness are not bonafide and further cross-examination on he alleged ground raised in the application is baseless, vague and not the subject matter of pending case, however, learned Revision Court allowed the application filed under Section 45 of the Evidence Act giving rise to this revision.

5. It is contended by learned Counsel on behalf of applicant/complainant that since respondent/accused is admitting his signature on the cheque, there is no necessity for sending the cheque for examination by Handwriting Expert concerning other contents of the cheque. It is further submitted that as per Section 139 of the Act presumption is in favour of the holder of the cheque unless the contrary is proved. Learned Counsel placed reliance on Sanjay Vs. Rajeev, 2007(2) M.P.H.T. 182. In that case, prayer was made to get the cheque examined by Handwriting Expert in order to prove that forgery has been committed by the complainant as the amount of the cheque was already paid to the complainant but later on complainant interpolated in that cheque and entered another date and made certain entries and then presented it in the bank. Considering the fact that signature on the cheque is admitted, it is held that there is no necessity to examine the questioned cheque by Handwriting Expert and petition was dismissed. Placing reliance on this citation, it is contended by learned Counsel for the applicant that as the signature on the disputed cheque is admitted by respondent, there is no need to send the cheque for examination by Handwriting Expert concerning its other contents including date, amount etc. It is further contended that application under Section 45 of the Evidence Act is very belated. No specific questions were put to complainant and witness concerning other contents of cheque in cross-examination. Hence, order of learned Revisional Court deserves to be set aside.

6. Combating the arguments advanced by learned Counsel for the applicant, it is contended by learned Counsel for the respondent/accused that respondent/accused has taken the defence that he has lost his cheque concerning which he has made a report at Police Station, Gola Ka Mandir, and thereafter he has also sent intimation to concerning bank for "stop payment" and tho