ORDER

Date : 12-12-2018 Heard Mr NS Laskar, learned counsel for petitioner. None appears for respondent despite serving notice. So the matter is taken up for hearing.

(2) Petitioner filed a complaint case before the learned CJM, Hailakandi u/s 138 of the Negotiable Instrument Act, 1988 against the respondent. The complaint was registered CR case 10(A)/2013.

(3) Respondent contested the case and the case proceeded to the stage of argument after examination of the respondent u/s 313 of the CrPC. Respondent also examined himself as DW1. At the stage when the case was fixed for argument, respondent prayed before the trial court to examine the age of the ink in the two cheques in question by FSL. The learned trial court allowed the prayer by order dated 17.6.2014.

(4) Accordingly the cheques were sent to Forensic Science Laboratory at Guwhati to determine the age of the ink of the signature of respondent in the cheques but the instruments were returned with the report that the facilities to ascertain the ink age are not available in Guwahati.

(5) Now respondent filed a petition before the trial court for sending the cheques to Delhi or any other FSL in India. The learned trial court rejected the prayer by order dated 2.8.2016 opining that a case under the NI Act is to be decided on its own merits by preponderance of probability and the matter will be appreciated through the evidence on record.

(6) Respondent challenged the said order in criminal revision 36/2016 and the learned Sessions Judge, Hailakandi by order dated 3.12.2016 allowed the prayer with direction that the learned trial court should allow the prayer to send the cheques to FSL at Delhi to ascertain the age of the ink of the signature of the accused appearing in the cheques.

(7) Petitioner challenged the said order on the ground that the order is bad in law as well as in facts and the order has been passed mechanically without appreciating the entire material on record.

(8) I have gone through the evidence of respondent as DW recorded on 17.4.2014 and his statement u/s 313 of the CrPC recorded on the same date and his response to the case.

(9) Respondent in cross-examination specifically admitted that he was agreeable to repay the money to petitioner but it was not possible for him to pay it at a time and urged upon this court to allow him to pay the money in installment. More specifically he admitted his signature in the cheques vide exhibit 1(1) and 2(1). Respondent admitted to have taken loan of Rs 5 lakh from the petitioner and have issued the cheques vide exhibit 1 and 2. He also categorically replied that he could not make any payment but has not cheated the petitioner. Lastly he also replied that after March 2014 he will pay the amount and that it would be convenient for him to pay in installment.

(10) Despite this admitted position of the accused himself, he suddenly filed a petition before the trial court for examining the cheques, which was initially allowed by the trial court for examination by FSL at Guwahati and as this laboratory could not determine the same the second prayer of the respondent to examine the cheques by FSL at Delhi or any other FSL was, however, rejected by the trial court. When the matter was carried to the revision the revisional court also allowed the prayer mechanically without going through the entire material on record. Only the submission of petitioner was taken into account in passing the order but the evidence and other pleas of respondent during trial were not gone through, particularly when the case was on the verge of conclusion i.e. at the stage of argument.

(11) In a case u/s 138 of the NI Act, of course, the drawer of a cheque already had a presumption in his favour but this can be rebutted during trial by rebuttal evidence.

(12) It is pertinent to note that in the said case the trial was almost completed and it was fixed for argument and at this stage it was incumbent on the part of the Sessions Judge to go through the material on r