ORDER

This petition is filed by petitioner - accused under Section

482 of CR.P.C for quashing the order dated 02.05.2023 passed by the II Addl. Civil Judge & JMFC, Shikaripur, for having rejected the application filed by the petitioner under Section 243 (2) of Cr.P.C. along with Section 45 of Indian Evidence Act and another application under 311 of Cr.P.C.

2. Heard arguments of learned counsel for petitioner and learned counsel for respondent.

3. The case of petitioner is that petitioner is the accused facing trial on the complaint filed by the respondent for the offence punishable under Section 138 of Negotiable Instrument Act. The cross-examination of the PW1 is already over and evidence of the petitioner also over. At that stage the counsel for petitioner-accused filed application to summon the Bank Manager for the purpose of examination, in view of the fact that there are material alternations in the cheque issued by the petitioner.

4. It is contended by the learned counsel for petitioner that there is material alteration in mentioning the name of the respondent as 'Lokeshappa' instead of 'Lakshappa' and also there is material alteration in mentioning of the year as '2018' and it was altered. Apart from that, there is another alteration in mentioning the amount, which was mentioned in the figure by adding '2' in front of '5' making it from 'Rs.5,00,000/-' to 'Rs.25,00,000/-'. Therefore, it is contended that it is necessary to summon the Bank Manager to verify the material alteration for what purpose the cheque was dishonored, it is for the reason 'insufficiency of funds'. He further contend that age of the signature hand writing, age of the name as mentioned in the cheque, the mentioning of money in words in different period of age, the mentioned date of cheque hand writing age, the mentioning amount of Rs.25,00,000/- hand writing age and examining of figure 2 adduced after only written of Rs.5,00,000/- and all these aspects are needed to be examined by hand writing expert. Hence, prayed for allowing the petition.

5. Per contra, learned counsel for the respondent objected the petition contended that the signature in the cheque has been admitted by the petitioner and that though there is some small alteration, but, the Bankers have not objected and dishonored the cheque only for 'insufficient fund' and not for material alteration. Therefore, no need to refer the matter to the FSL and also there is no examination of the bank witness in order to recall the Bankers for the further examination. Hence, he prayed the petition be dismissed as withdrawn.

6. Having heard the arguments of the learned counsel for petitioner and learned counsel for respondent and on perusal of the entire material on record, of course, it is clearly reveals that there are some corrections in mentioning the name in the cheque that it is mentioned as 'Lokeshappa' instead of 'Lakshappa'. Even there is material alteration in mentioning of the year as '2018' and there is some over writing. Apart from that, there is some insertion made in the cheque in mentioning the amount, which was mentioned in the figure by adding '2' in front of '5' making it from 'Rs.5,00,000/-' to 'Rs.25,00,000/-'. Therefore, considering aforesaid facts, the memo for dishonor of cheque issued by the Bankers is only for 'insufficient of funads'. Therefore it is necessary for the petitioner to summon the bankers whether he is examined or not. The power of Section 311 Cr.P.C. is vested with the Learned Magistrate and for the Court, to summon any witness whether cited as witness or not. That apart, under Section 243(2) of Cr.P.C. when the petitioner filed any witness and examined, the court is required to summon the witness for examination on behalf of the petitioner. Since, the petitioner required to examine the witnee and rebut the presumption available to the complainant under Section 139 of Negotiable Instrument Act.

6. The question of trial Court rejecting the application for summoning the