Gupta, J. -- 1. This petition has been filed under section 482 of the Code of Criminal Procedure, 1973 [in short the “Code”] by the petitioners being aggrieved by the order dated 6.5.2014 passed by Judicial Magistrate First Class, Gwalior in Criminal Complaint No.5739/2013 whereby the application under section 45 of Evidence Act, 1872 [for brevity Act 1872] sending the disputed cheque for examination by the handwriting expert was dismissed.

2. Brief facts of the case are that respondent filed a private complaint under section 138 of Negotiable Instruments Act, 1881 [in short the Act 1881] wherein it was alleged that accused received Rs.5,00,000/- from the respondent/complainant and for paying the same issued a cheque No.000097 of Allahabad Bank dated 11.3.2013 in favour of the complainant. It was further alleged that cheque was presented in the bank by the complainant and the same was dishonored with the endorsement opening balance insufficient, hence, issued a legal notice, thereafter, private complaint has been filed before the competent Court. During the pendency of the complaint, petitioners/accused filed an application under section 45 of Act, 1872 and the same was dismissed vide order dated 26.9.2013 on the ground that the accused can take this steps at the stage of defence. It is further submitted that evidence was produced by the respondent/complainant before the Court and the same was cross examined by the counsel of the petitioners and it was admitted by the complainant that he has not completed any formalities with regard to the transaction. Complainant closed evidence and Court recorded examination of the petitioner under section 313 of the Code and fixed the case for defence.

3. At the stage of defence, petitioners filed an application under section 45 of Act, 1872 for sending the disputed cheque for examination by the handwriting expert. Respondent did not file any reply and after hearing of the parties, learned Magistrate dismissed the same vide order dated 6.5.2014.

4. Learned counsel submitted that impugned order passed by learned Magistrate is wholly illegal, arbitrary hence deserves to be set aside. It is further submitted that learned trial Court committed an error in not considering the order passed by this Court in the cases of Abhishek v. Ramesh reported in 2012 (II) MPWN 13, Mukesh Goyal v. Yasin Patel reported in 2009 Legal Eagle (M) 47 and Ram Singh Damor v. Sunil Kumar reported in 2012 Legal Eagle (MP) 222 wherein it was held that the age of writing on the disputed cheque is material for determination of the right of the petitioners/accused and they are entitled to get the cheque examination by handwriting expert and ascertained the age of both writing. It is further submitted that learned trial Court committed an error while passing the impugned order ignored the observation made in the order dated 26.9.2013 in which the Court observed that the stage is not proper and application can be filed at the stage of defence, hence, now the application is dismissed which is clearly violation of the natural justice. On these ground learned counsel for the petitioners prays for set aside the order dated 6.5.2014 by allowing the application under section 45 of Evidence Act.

5. On the other hand learned counsel for the respondent vehemently opposed the argument advanced by learned counsel for the petitioners contended that the learned trial Court exercised his jurisdiction judiciously as the application filed by the petitioners with the intention to protract the trial. He also submitted that petitioners have admitted their signature on the cheque therefore, no need to send the disputed cheque for examination of handwriting expert. He also submitted that impugned order passed by learned trial Court is well merited and no interference is called for.

6. Upon perusal of the order dated 26.9.2013, it appears that earlier application under section 45 of Act, 1872 was dismissed by learned trial Court on the ground