An accused has the right to expert evidence for defense, and denial of such undermines the right to a fair trial.

O R D E R

The order under challenge in this petition is one rendered by the trial court concerned (Court of Judicial First Class Magistrate-I, Hosdurg) on 9.8.2017, whereby the application made by the petitioner as per Annexure- 6 (Crl.MP No.1419/2017) for sending the cheques along with certain handwritings to the Forensic Science Laboratory for handwriting analysis has been rejected by the court below.

2. This petition was admitted on 25.10.2017 on which day, the learned Prosecutor had taken notice for R-2 State and notice was ordered to be issued to R-1 returnable within two weeks. Now, it is reported by the Registry that notice to R-1 (complainant) has been duly served. But, there is no appearance for that party.

3. Heard Sri.K.R.Avinash (Kunnath), learned counsel appearing for the petitioner (accused) and Sri.Saigi Jacob Paletty, learned Prosecutor appearing for the R-2 State. In spite of due service of notice on R-1 (complainant), there is no appearance for that party.

4. The case set up by the complainant in para 2 of Annexure-1 complaint is to the effect that the accused had issued all the cheques in question. It appears that the accused had not sent any reply to the statutory demand notice issued by the complainant under Section 138 proviso (b) of the Negotiable Instruments Act . During the cross- examination of PW1, the defence taken up by the accused is to the effect that all the handwritten entries in the four dishonoured cheques in question belonging to that of the complainant and that the complainant is the brother in law of the accused and that the cheques have been misused by the complainant, etc. Thereafter, the complainant has filed Annexure-6 application, Crl.MP No.1419/2017, asserting therein that the complainant has made all the entries in the four dishonoured cheques and that during the cross-examination, the complainant has denied the suggestion that the entries in those cheques are made by him and that therefore, the accused has prayed in Annexure-6 application that professional opinion of the handwriting experts is highly necessary for rendering just decision in the trial and accordingly prayed that the four dishonoured cheques covered by Exts.P2 to P5 along with another cheque of the complainant as per Ext.P13 should be sent to the Forensic Science Laboratory for comparison and handwriting analysis. The complainant had filed Annexure-7 counter/objection to Annexure-6 application by pointing out that he had duly denied the suggestion put to him by the defence during the cross- examination that the entries in Exts.P2 to P5 cheques are in the handwriting of the complainant and further he has admitted that the handwriting in Ext.P13 cheque is that of the complainant and that a bare comparison, through a naked eye, of the handwriting in Ext.P13 with that of Exts.P2 to P5 dishonoured cheques involved in this case would make it clear that the handwritten entries in Exts.P2 to P5 cheques are not that of the complainant and that the controversy can be resolved by taking recourse to the provisions contained under Section 73 of the Evidence Act and that it is not necessary to send the cheques to the Forensic Science Laboratory for expert opinion etc. The trial court as per the impugned Annexure-8 order dated 9.8.2017 has rejected the request made by the petitioner (accused) as per Annexure-6 application. The main ground on which the trial court has denied the request of the accused is that such a defence suggestion was made by the accused only at the time of cross- examination of PW1 and that the accused had not availed the opportunity to send a reply notice to the statutory demand notice sent by the complainant under proviso (b) of the and that the present attempt is only to delay and protract the proceedings, etc.

5. On a perusal of the materials made available to this Court, it is seen that the accused would admit that he had not chosen to send any reply notice to the statutory demand notice, and thereafter, he