ORAL JUDGMENT

1. By way of this petition filed under Section 482 of the Code of Criminal Procedure, the petitioners have prayed to quash and set aside the order dated 22.12.2014 passed by the Court of learned Addl. Sessions Judge, Nadiad in Criminal Revision Application No.63 of 2014 whereby, the revision application was dismissed and the order dated 07.05.2014 passed by the Court of learned JMFC, Thasra below application Exhibit-

109 filed in Private Complaint No.652 of 2003 was confirmed.

2. The facts in brief are that respondent No.1 herein, original complainant, had filed Private Complaint No.652 of 2003 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the NI Act”) against the petitioners herein before the Court of learned JMFC, Thasra inter alia alleging that the cheque bearing No. 659608 dated 09.04.2003 for Rs.4 Lacs issued by the petitioners in favour of respondent No.1 had returned with the endorsement of “Insufficient Funds” on its deposit with the drawee Bank. Statutory notice was issued by respondent No.1 and ultimately, the impugned private complaint came to be filed before the Magisterial Court.

2.1 It is the say of the petitioners that the cheque in question was given to respondent No.1 as a surety and that at the relevant time, all the particulars to be filled-in on the cheque had been kept blank except the signature portion.

3. Learned advocate Mr. Sunil Shah for the petitioners submitted that the petitioners had only signed the cheque in question, which was given as surety and that all other particulars were filled-in by respondent No.1 without the knowledge of the petitioners. It was submitted that the petitioners had already paid up the dues of respondent No.1 through “Bhuvneshwari Quarry Works” and that respondent No.1 had filled-in the particulars on the cheque that was given to him in the year 2000 and had, thereafter, deposited the same with the Bank on 09.04.2003. Before the Magisterial Court, the petitioners had filed application Exhibit-109 in the impugned private complaint seeking a direction that the cheque in question be sent to the Hand-writing Expert for opinion. However, both the Magisterial Court as well as the Revisional Court dismissed the prayer made by the petitioners. It was contended that though the petitioners had specifically raised a contention that the hand-writing on the body of the cheque was not of the petitioners and that respondent No.1-complainant had filled-in the cheque, without the knowledge of the petitioners, the Courts below did not afford any opportunity to the petitioners to prove their case. It was, therefore, prayed that the impugned orders passed by the Courts below may be quashed and set aside.

3.1 Learned advocate Mr. Shah placed reliance upon a decision rendered by a learned Single Judge of this Court in the case of Madhubhai Gandabhai Patel v. Joitaram Jividas Patel and another, 2005 (3) GLH 535 wherein, it has been held as under:

“… As per law the accused has right to lead evidence for supporting the defence in the proceedings under Section 138 of the Negotiable Instruments Act. The presumption of law in respect of the contents of the cheque can be rebutted by leading cogent evidence for such purpose. If during the course of hearing the Court finds that it is necessary to forward the cheque to the hand writing expert, it may do so, but without there being any supporting evidence for such purpose led by the accused it cannot be asserted by the accused that the cheque may be sent to the hand-writing expert by raising dispute that the cheque was signed blank and the contents are not written by the accused...”

3.2 Reliance was also placed on a decision of the Apex Court in the case of Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258 wherein, it was held that the prayer made by accused to send the cheque, which was subject matter of complaint under Section 138 of the NI Act, for opinion of the Hand-writing Expert so a