IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL MISHRA nd ON THE 2 OF MAY, 2024 CRIMINAL REVISION No. 4259 of 2018 BETWEEN:-

GAURAV DUBEY S/O SHRI PRADEEP DUBEY BRAMAN, AGED ABOUT 28 YEARS, OCCUPATION: CULTIVATOR R/O VILL. GURRA TEH. ITARSI DISTT. HOSHANGABAD (MADHYA PRADESH)

.....APPLICANT (BY SHRI DEEPESH KOSHTA - ADVOCATE)

AND SALAKRAM YADAV S/O SHRI TEEKARAM YADAV, AGED ABOUT 45 YEARS, OCCUPATION: SERVICE R/O NEAR P.S. RAILWAY STATION GURRA TEH. ITARSI DISTT. HOSHANGABAD (MADHYA PRADESH)

.....RESPONDENT This revision coming on for hearing this day, the court passed the following:

ORDER

I.A.No.3262/2023 - an application for taking documents on record.

For the reasons assigned, the same is allowed.

Assailing the order dated 07.08.2018 passed by the Judicial Magistrate First Class, Itarsi, District Hoshangabad in a Complaint Case No.739 of 2012, the present revision has been preferred.

It is the case of the applicant that a criminal complaint under Section 138 of the Negotiable Instrument Act was filed alleging therein that the non-applicant contracted to sale his house for a consideration of Rs.11,50,000/-. He received Signature Not Verified Signed by: SHALINI a full consideration for sale and executed an agreement to sale. Thereafter, he decided to sell his house on mutually agreed terms and conditions but subsequently, the agreement to sell was cancelled by the applicant and the non- applicant issued a cheque on 07.05.2012 amounting to Rs.11,50,000/- which stood dishonoured on being presented before the bank therefore, the proceedings under Section 138 of the Negotiable Instrument Act was initiated.

The evidence of the applicant and his witnesses were recorded before the trial court prior to evidence of the non-applicant, an application under Section 45 of the Evidence Act was filed on the ground that the amount and the name in the cheque was not been written by him. The application of the non-applicant was rejected by the learned trial court. After the evidence led by the non- applicant, he again filed an application under Section 45 of the Evidence Act that he may be permitted to compare the writing on the cheque by the handwriting expert vide order dated 07.08.2018, the application was allowed. The same was put to challenge by filing the present criminal revision on the ground that the first application was already rejected by the trial court therefore, the second application was not maintainable. The second ground is that once he has admitted his signature on the cheque in question there is no requirement of getting it examined by the handwriting expert for the purpose of verifying the writing on the instrument, as the instrument can be filled by anyone but it was only signed by the respondent. The learned trial court has failed to consider the aforesaid aspect of the matter and allowed the application.

He has placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197 and has prayed for setting aside of the impugned order. It is further Signature Not Verified Signed by: SHALINI argued that the said application has been filed just to prolong the proceedings.

Heard the learned counsels for the parties and perused the record.

The record indicates that the first application was dismissed on the ground that the defendant was yet to lead his evidence after completing his evidence, he has filed an application under Section 45 of the Evidence Act for getting the handwriting on the instrument examined by an handwriting expert. The learned trial court allowed this application getting the writing on the instrument examined by the handwriting expert virtually no prejudice will be caused to the applicant. The matter is pending since 2018 before this court. Therefore, there cannot be question of delay was proceedings in the matter. Had it been a condition that the trial court is proceeding in the matter to get the instrument exami