ORDER:

1. The instant Petition is filed seeking quashment of the impugned order dated 27.10.2022 passed in Crl.M.P.No.1009 of 2022 in CC No.439 of 2018 on the file of the Court of Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Bhimavaram.

2. The brief facts leading to the filing of this Petition are;

a. Petitioner herein is the Accused and Respondent No.2 is the Complainant in the above C.C. Accused borrowed an amount of Rs.8,00,000/- on 13.03.2016 by executing a demand promissory note. To discharge the said debt amount, Accused issued a cheque to the Complainant which was dishonoured. On the basis of the private complaint given by the Complainant, C.C.No.439 of 2018 was registered against Accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I.Act’).

b. In that CC, accused has filed Crl.M.P.No.1009 of 2022 under Section

45 of the Indian Evidence Act to send the demand promissory note dated 13.03.2016 along with her admitted signatures to hand writing expert, for comparison and report.

c. Learned Trial Judge, vide Order dated 27.10.2022 dismissed the said Crl.M.P.

d. Questioning the same, the present Criminal Petition has been filed seeking quashment of the impugned order.

Arguments Advanced at the Bar

3. Heard Sri Mangena Sree Rama Rao, learned counsel for Petitioner/

Accused and learned Assistant Public Prosecutor for respondent No.1/State.

Notice sent to respondent/Complainant was returned as unclaimed.

4. Learned counsel for Petitioner/Accused would submit that Petitioner is facing trial in the matter and at that time, he filed a Petition to send the demand promissory note dated 13.03.2016 along with the admitted signatures to hand writing expert for comparison and report. The said Petition was dismissed by the Trial Judge observing that the Complainant is not seeking any relief basing on the Promissory Note/Ex.P1, hence, the examination of the said promissory note is not necessary. Learned counsel further would submit that the defence of the Petitioner is that the alleged promissory note is fabricated and forged the signature of the Petitioner. The defence projected by the Petitioner is that he admitted his signature on cheque/Ex.P2 but it was not issued to the Complainant and in the circumstances, she specifically denied her signature on Promissory Note/Ex.P1.

5. Learned counsel further would submit that there is no legally enforceable debt or issuance of the subject cheque to respondent/ Complainant. On the other hand, complainant has not filed any suit for recovery of money and that sending Ex.P1/Promissory note is very much relevant and would be helpful to rebut the presumptions.

6. Learned Assistant Public Prosecutor would submit that the Court may pass appropriate orders.

7. As can be seen from the impugned order, the contention of the respondent No.2/Complainant is that the accused failed to furnish the registered document or admitted signatures for the contemporary period, and as such, the Court may compare the signatures on the promissory note. Hence, there is no need to send the document to hand writing expert.

8. A keen perusal of the impugned order would reveal that the view expressed by the Trial Judge that Ex.P1/Promissory Note is not the subject matter and basing on that document, seeking the relief as stated supra, is not correct. The reason being, it is the specific contention of the accused that there is no legally enforceable debt and it is one of the opportunities that may be available to the Accused to rebut the presumption that may arise in favour of the Complainant in Section 138 case. Therefore, a fair opportunity can be given to both parties to prove their respective contentions. In that view of the matter, it is apposite to consider the request of the Petitioner/Accused in the interest of justice. Hence, the impugned order needs to be quashed.

9. In the result, the Criminal Petition is allowed and the Order dated

27.10.2022 passed in Crl