Interlocutory orders under Section 45 of the Evidence Act are not subject to revision under Section 397(2) Cr.P.C., as they do not conclude the main proceedings.

COMMON JUDGMENT:

Assailing the orders dated 21.12.2015 in Crl.M.P.No.9069 of 2015 in C.C.No.367 of 2014 and Crl.M.P.No.9068 of 2015 in C.C.No.177 of 2014 on the file of the Special Mobile Court of learned Judicial Magistrate of First Class at Eluru, the petitioner/accused filed the Criminal Revision Case Nos.245 and 246 of 2016 under Section 397 r/w.401 of the Criminal Procedure Code, 1973 (hereinafter referred to as “ Cr.P.C .”) respectively.

2. Since common question of law involved in both the criminal revisions, the parties in both the revision cases are one and the same, the same are being disposed of by way of this common judgment.

3. It is required to be noted that during the pendency of these revision cases, an interim stay of all further proceedings in the main calendar cases before the Trial Court until further orders was granted, vide order dated 01.05.2019.

4. The shorn of necessary facts leading to prefer the present criminal revision cases are that:

i). The petitioner in both the revision cases is the accused in the complaints filed against him by the complainant/respondent No.2 herein for the offence under Section 138 of Negotiable Instruments Act.

ii). During the pendency of the said matters, the revision petitioner/accused has filed petitions in both the matters under Section 45 of the Evidence Act requesting the Trial Court to send the documents in question to the Forensic Laboratory for obtaining the opinion of the expert by stating that the handwriting of the date mentioned in the respective cheques is not that of petitioner and the ink used for execution of promissory note and the remaining the portion of the cheques is different and the difference can be proved through handwriting expert.

5. The said petitions were dismissed by the Trial Court by giving reasons and following the pronouncement of this Court and held that when the application for seeking opinion of the expert is filed at a belated stage without availing the earliest opportunity, the application is not maintainable under Section 45 of the Indian Evidence Act.

6. Aggrieved by the same, the petitioner/accused preferred the present criminal revision cases.

7. Heard Smt.K.Srilakshmi, learned counsel representing by Sri Dasari S.V.V.S.V.Prasad, learned counsel for the petitioner/accused and Sri Md.Ismail, learned counsel representing Sri C.Sharan Reddy, learned counsel for the respondent No.2/complainant.

8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court?”

9. It is the only contention of the revision petitioner/accused that the handwriting of the date mentioned in the respective cheques is not that of petitioner/accused and the ink used for execution of promissory note and the remaining portion of the cheque is different, thereby, required to send the same for expert report.

10. Now, it is relevant to refer the categorical observations made by the Hon’ble Supreme Court in Oriental Bank of Commerce v. Prabodh Kumar Tewari , [12022 LiveLaw (SC) 714], that “…..the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability.”

11. In view of the above precedent, it is categorical that the presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defence whether cheque was issued towards payment of a debt or in discharge of a liability. In the present case on hand,