ORAL ORDER

1. By way of this writ application filed under Article 226 of the Constitution of India read with Section 482 of the Cr.P.C., the applicant – original complainant of Criminal Case No. 19611 of 2009, has challenged the legality of the order dated 18.04.2022 passed below Exh. 97, by which 22nd Additional Judicial Magistrate Court at Surat, referred the disputed cheque and other documents for the opinion of private hand writing expert and also summoned the private hand writing expert Mr. J.J. Dave as a defense witness.

2. Facts and circumstances giving rise to file the present application are that, the father of the applicant had instituted a private complaint against the respondent no. 2 for the alleged offence punishable under Section 138 of the Negotiable Instrument Act, 1881. When the case reached at the defense evidence, the respondent no. 2 moved an application Exh. 97 for sending the cheques and other documents to the private hand writing expert Mr. J.J. Dave, Surat to obtain his opinion regarding the hand writing of the signature in the cheque and also prayed for issuance of summons on Mr. J.J. Dave. Vide order dated 18.04.2022, the learned trial Court by allowing the application, the hand writing expert Mr. Dave was directed to verify the identity of hand writing as well as signature of the accused bears on the cheque, vakalatnama and statement recorded under Section 313 of the Cr.P.C. and permission to examine Mr. Dave as defense witness is allowed and accordingly, issued summons.

3. Being aggrieved with the said order, the original complainant i.e. present applicant has preferred present application.

4. This Court has heard learned counsel Mr. K.S. Shah and Mr. Hardik Dave for the respective parties.

5. Mr. Shah, learned counsel has submitted that, the order impugned is not sustainable in law as without assigning any reasons, the trial Court has in a mechanical manner referred the documents for examination of hand writing and also permission to examine private hand writing expert is granted. It is in this context, he submitted that, the similar plea was earlier rejected the court concerned and again the same prayer has been sought for which, the learned trial Court has overlooked the earlier round of litigation. He has further submitted that before filing the complaint for the alleged dishonour of cheque, the statutory notice dated 15.06.2009 was served upon the accused respondent and it was replied on 29.06.2009. In the reply, the signature of the cheque was not disputed by the accused. In the cross-examination of the complainant, signature bears on the cheque was not disputed. In other words, till the stage of recording further statement, the accused respondent never disputed signature and hand writings.

6. In the aforesaid contentions, learned counsel Mr. K.S.

Shah submitted that, the Criminal Case No. 19611 of 2009 is pending for its adjudication and accused respondent on one pretext or another, trying to delay the proceedings and therefore, the trial Court failed to exercise its discretion in proper manner as the application Exh., 97 was filed with an intention to delay the trial and same is amount to sheer misuse of process of law and Court. Thus, he would urge that, the case is made out for exercising extra- ordinary jurisdiction to interfere with the order impugned as it is a case of wrong exercise of powers, which has resulted into gross injustice to the applicant – complainant.

7. On the other hand, Mr. Hardik Dave, learned counsel appearing for the respondent has submitted that, in the proceedings of the case filed under the provisions of N.I. Act, once the execution of cheque is admitted, section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability and said presumption is rebutable presumption and the onus is on the accused to raise the probable defense and standard of proof for rebutting the presumption is that of preponderance of probabilities. I