APHC010017162016

[3560]

Revision filed under Section 397/401 of CrPC praying that in the circumstances stated in the affidavit filed in support of the CriminalRevisionCase, the High Court may be pleased toto set aside the order dated 08.06.2016 passed in Crl.M.P.No. 705 of 2016 in C.C. No. 33 of 2014 on the file of Court of Judicial Magistrate of 1st Class Special Mobile Court, Chittoor and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.

IA NO: 1 OF 2016(CRLRCMP 2717 OF 2016

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings including appearance of the petitioner in C.C.No. 33,of 2014 on the file of Court of Judicial Magistrate of 1st Class Special Mobile Court, Chittoor, pending disposal of the main Criminal Revision Case and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.

Counsel for the Petitioner:

1.SATHEESH KUMAR EERLA

Counsel for the Respondent(S):

1.PUBLIC PROSECUTOR (AP)

2.Dr.ANANTH S

3.LEGAL AID

The Court made the following:

THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA

CRIMINAL REVISION CASE NO: 1869/2016

The Court made the following ORDER:

The instant Criminal Revision Case has been preferred against order dated 08.06.2016 passed by learned Judicial Magistrate of I Class-Cum Special Mobile Court, Chittoor in Crl.M.P.No.705 of 2016 in C.C.No.33 of 2014.

2. The Brief facts of the case is that respondent No.2 being complainant filed a case before learned Trial Court under Section 138 of Negotiable Instruments Act, 1881¹The N.I.Act, 1881 (for brevity the N.I.Act) on the ground that cheque issued by present petitioner was dishonoured. During the course of proceedings before learned Trial Court, petitioner has challenged hand writing and signature over the alleged cheque to verify the signature and hand writing. Petitioner filed an application being Crl.M.P.No.705 of 2016 under section 45 of Indian Evidence Act, 1872 to send Ex.P1 cheque and vakalathnama of petitioner/accused to hand writing expert for comparison of alleged signature of his writing to get opinion the report from hand writing expert. The said Crl.M.P No.705 of 2016 was heard and learned Trial Court below has turndown the Crl.M.P. No.705 of 2016 on the ground that petitioner/accused at initial stage has not replied legal notice issued by the respondent No.2.

Submissions of learned counsel for the petitioner:

3. The impugned order passed by the learned Court below is illegal and improper. The learned Court below has failed to appreciate the fact that the accused has challenged signature on the cheque and contended that the cheque is forged and fabricated. Thus, without comparing proposed signature of accused on cheque with his signature in the vakalatnama or his admitted signatures available on record, the entire issue cannot be resolved.

4. He further submits that the learned Court below has only turned down the application on the ground that the petitioner, being the accused, did not reply to the demand notice denying his signature on the cheque. The ground for rejection in the impugned order of the learned Trial Court is perverse. Thus, the impugned order is liable to be set aside.

5. He further submits that when there is an issue before the learned Court below regarding the challenge to the signature of the accused, the Court below ought to have obtained an expert opinion to compare the signature of the accused on the cheque. He therefore prayed for setting aside the impugned order and remanding the matter back for fresh consideration.

Submissions of learned counsel for respondent No.2

6. The instant Criminal Revisions Case is not at all maintainable. It is further submitted that order under section 45 of Indian Evidence Act, 1872 is discretion any power of court. An Order which was passed in disc