ORDER:

This Criminal Revision Case, under Sections 397 and

401 of the Code of Criminal Procedure, 1973, is filed to set aside the Order dated 12.04.2017 passed in Crl.M.P. No.1278 of 2017 in C.C.No.39 of 2015 on the file of the V Special Magistrate, Visakhapatnam, whereby the learned Magistrate dismissed the application filed by the petitioner/accused under Section 311 CrPC seeking to reopen the matter for the purpose of examination of hand-

writing expert and marking his report in the said C.C. 2. Heard the learned counsel for the petitioner and the learned counsel for 2nd respondent. Perused the record.

3. 2nd respondent herein filed C.C. No.39 of 2015 on the file of the V Special Magistrate, Visakhapatnam against the petitioner/A.2 and another (A.1), who is her husband, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2nd respondent’s case is that the accused failed to discharge the legally enforceable debt under a promissory note dated 15.06.2008, which contains a part-payment endorsement for Rs.22,000/- dated 10.06.2011. It is his case that to discharge the said legally enforceable debt, the accused issued cheque bearing No.798213, dated 09.12.2012, but when he presented the same for payment, it was dishonoured with endorsement ‘fund insufficient’. After complying with the mandatory requirements under Section 138 of the Act, as the accused did not repay the amount covered under the dishonoured cheque, he filed the present complaint.

4. It is the case of accused that the signature contained on part-payment endorsement dated 10.06.2011 on the promissory note is forged one and hence, the debt under the promissory note dated 15.06.2008 is a time barred one. It is the case of the accused that 2nd respondent/ complainant filed Original Suit No.600 of 2012 on the file of the XII Additional District Judge, Visakhapatnam for recovery of debt due under the aforesaid promissory note, and in the said suit, the disputed signature on part payment endorsement dated

10.06.2011 was sent for examination of the hand-writing expert for comparison with admitted signatures, and the expert, after comparison, gave opinion dated 03.01.2017 opining that the signature on part-payment endorsement dated 10.06.2011 on the suit promissory note was not tallying with that of the admitted signatures of the executant, and hence, he filed present application Crl.M.P.No.1278 of 2017 in the aforesaid C.C. to reopen the matter for the purpose of defence evidence i.e. to examine the hand-writing expert. The said application was dismissed by the learned Magistrate holding that admittedly, the said report of the hand-writing expert is not in the custody of the Magistrate, and without taking appropriate steps to send for the said documents, the petitioner is filing application after application, which is only to drag on the proceedings.

5. Admittedly, the opinion rendered by the hand-

writing expert is not a part of the record in the subject C.C. It is a part of record of a civil suit filed by 2nd respondent herein on the file of the XII Additional District Judge, Visakhapatnam. The learned Magistrate gave liberty to petitioner to take appropriate steps to send for the said document from the Court concerned. Despite the caution given by the learned Magistrate, which is appropriate in the present facts and circumstances of the case, the petitioner goes on filing petition after petition. It is evident from the same that the same is being done with an intention to drag on the proceedings.

6. Learned counsel for the petitioner relied on a decision in Krishnan & another v. Krishnaveni & another1, wherein it is held thus: (paragraph 10)

“10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person — accused/complainant — cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumventio