ORDER

The present petition has been filed under Section 482 of Cr.P.C. to quash the order dated 28.06.2019 passed by learned Judicial Magistrate, First Class Burhanpur in SCNIA No.493/2016 Lakhmichand Vs. Yogesh Pritwani whereby application under Section 45 and 73 of the Evidence Act filed by the petitioner/accused has been dismissed. Against the impugned order a revision was preferred by the petitioner/accused before the Sessions Judge, Burhanpur, who by order dated 12.09.2019 passed in Cr.R. No. 37/2019 Yogesh Pritwani Vs. Lakhmichand has affirmed the order of learned JMFC and has dismissed the revision application.

2. The brief facts of the case are that the respondent/complainant filed a complaint case No. 493/2016 in the Court of Judicial Magistrate, First Class, Burhanpur under Section 138 of the Negotiable Instrument Act, 1881 alleging that the petitioner had issued cheque bearing number 441585 and 441586 dated 15.10.2015 and 16/11/2015 respectively for Rs. 3,00,000/- each, drawn at IDBI Bank Civil Lines, Raipur and when the said cheques were presented in Bank of India, Branch Indira Nagar, Burhanpur for encashment. Both the said cheques were returned unpaid by the IDBI Bank along with the return memo dated 02.12.2015 with an endorsemnt, "funds insufficient" which means that the account of the petitioner did not have sufficient amount in his account for encashment of the aforesaid cheques. Thereafter, the respondent issued legal notice dated 05.12.2015 requiring the petitioner for payment of amount under the Cheques within 15 days. It is further alleged that the petitioner inspite of the receipt of said legal notice, did not make payment of the amount under the cheques in question and therefore, the complaint was filed for commission of offence under Section 138 of the Negotiable Instrument Act, 1881. At the stage of defence evidence, the petitioner/accused moved an application under Sections 45 and 73 of the Evidence Act and made a prayer for sending the cheques to FSL for opinion of the handwriting expert and forensic science opinion about the age and writing of the ink on the cheques.

3. Shri Sanjay Agrawal learned counsel for the petitioner submitted that the rejection of the application has led to the denial of the opportunity of defence and fair trial. Learned counsel referring Para 20 of the cross-

examination of the respondent/complainant Lakhmichand has submitted that in his cross-examination respondent/complainant Lakhmichand has clearly admitted that in Exhibit P/1 and P/4 cheques writing of the signatures of the accused and writing of all other entries of the body of the cheques including date, amount and digits are different. He has admitted that he has no personal knowledge about the cheques in question. His advocate has due knowledge about the cheques. It is submitted by the learned counsel that in his examination of accused under Section 313 of Cr.P.C., accused has taken a specific defence that he never made any transaction with the complainant. He never gave cheques in question to the complainant. It is submitted that respondent/accused is the resident of Raipur whereas complainant is the resident of Burhanpur. They are not known to each other. It is further submitted that in 2011-2012, petitioner/accused had given aforesaid two cheques to one Avinash Agrawal of Raipur along with other cheques. Avinash Agrawal in collusion with Mohan Goklani hatched a conspiracy agaisnt him and has handed over the aforesaid signed blank cheques to complainant for illegal recovery.

4. It is submitted that as per the averment in complaint, cheques were issued in the year 2015 whereas accused has taken specific defence that he had handed over the aforesaid blank cheques to Avinash Agrawal of Raipur and not to complainant and it is admitted that handwriting contained in Exhibit P/1 and Exhibit-P/4 cheques in question is different handwriting from the handwriting of signatures of the petitioner and same has been admitt