O R D E R

This Criminal Revision Petition has been filed to set aside the order dated 21.06.2022 passed in C.M.P.No.762 of 2022 in S.T.C.No.214 of 2020 on the file of the Judicial Magistrate No.II at Ponneri.

2. The respondent/complainant filed a private complaint against the petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act before the Judicial Magistrate No.II, Ponneri and the same was taken on file in S.T.C.No.214 of 2020. After the examination of the complainant side evidence and the completion of proceedings under section 313Cr.P.C , the revision petitioner/accused filed a petition under Section 254(2) Cr.P.C., to examine Prof.K.Ramakrishnan, (Director), Emeritius, Documents Division as a defence witness and mark the report/opinion of Truth Labs dated 04.12.2021 along with connected documents. The said petition was taken on file in C.M.P.No.762 of 2020, in which the respondent/complainant filed counter. After hearing the arguments advanced on either side, the learned Magistrate dismissed the petition. Challenging the same, the petitioner/accused has filed the present Criminal Revision Petition before this Court.

3. Learned counsel for the petitioner submitted that he denied the signature and also the execution of cheque. Hence, he has to rebut the presumption under Sections 139 and 118 of the Negotiable Instruments Act. The complainant/respondent side, two witnesses were examined. The petitioner put a suggestion that he has not executed the disputed cheque. The petitioner already took the certified copy of the disputed signature from the Court and sent the same for comparison and got opinion. In order to substantiate his defence and rebut the presumption, the opinion has to be marked through witness, hence he filed a petition under Section 254(2) Cr.P.C., before the Judicial Magistrate No.II, Ponneri. The learned Magistrate failed to consider the same and simply dismissed the petition on the ground that no contemporary document was filed. It is the right of the accused to rebut the presumption, he can examine any witness to establish his case and disprove the case of the complainant. The Trial Court failed to consider the fact and simply dismissed the same. Further, he submitted that the accused always need not invoke Section 45 of the Indian Evidence Act to seek opinion of the expert, and the Indian Evidence Act does not differentiate between a private expert and Government expert. Therefore, the order of the Magistrate is perverse and liable to be set aside.

4. Learned counsel for the respondent submitted that the petitioner has not denied the signature and he stated that he has not given the cheque to the respondent as projected by the respondent/complainant. In the petition, he has not stated the purpose for which he called the witnesses as stated in the complaint to examine as defence witness. He has not produced any other document with regard to the same and further he submitted that the original cheque is in the court and without the original cheque, how the petitioner has got expert opinion, without filing any application to send the original cheque to compare with the contemporary document. Therefore, without comparing with the original document, no opinion can be sought to be marked either from private expert or government expert. Therefore, the petitioner cannot get an opinion directly through experts and the said documents cannot be marked and the petitioner has not stated why he has not approached the Court to compare the signature found in the original disputed cheque which is already in the Court and why he has not produced any contemporary documents before the Court and why he has not sought permission of the Court to send both the documents for getting expert opinion. Therefore, in the said circumstances, the witness sought for by the petitioner cannot be examined for that purpose. In support of his contentions, he also placed reliance on the judgment dated 07.09.2017 mad