T MADHAVA RAO Vs. M GUMAN REDDY

JUDGEMENT

(1.) The respondent filed a complaint under Section 138 of Negotiable Instruments Act against the petitioner alleging that a cheque for Rs. 95,000/- issued by the petitioner on 9-8-1999 towards the debts due to him under three pronotes dated 12-7-1998, 3-6-1998 and 5-9-1998, was dishonoured and that in spite of statutory notice of dishonour the petitioner did not pay the amount covered by the dishonoured cheque.

(2.) The respondent examined himself as P/W1 and marked Exs. P1 to P11. The petitioner examined himself as DW 1 and another witness as DW 2 and marked Exs. D1 to 3 on his behalf. He later filed Crl. M.P. No. 5143 of 2001 under Section 45 of the Evidence Act to send Ex. D. 1 Pass Book, said to have been issued by the 1st respondent in connection with the chit fund transaction and Vakalat of the 1st respondent to a hand writing expert for comparison of the signatures, to find out if Ex. D.1 contains the signature of 1st respondent or not, to prove his contention that the bounced cheque was issued in connection with a chit fund transaction between him and the 1st respondent. The learned Magistrate dismissed the said Crl. M.P. on the ground that the opinion of expert relating to the signatures in Ex. D. 1 can have no connection with the offence alleged, and because the petitioner did not, in his preliminary examination under S. 351 of Cr. P.C. state that he gave the bounced cheque in connection with a chit fund transaction. The revision petition No. 45 of 2001 filed by the petitioner before the III Additional Sessions Judge, Ranga Reddy District against the said order of dismissal also met with the same facts. Hence, this petition questioning the order in Crl. R.P. No. 45 of 2001.

(3.) The contention of the learned counsel for the petitioner is that since the bounced cheque was issued in connection with a chit fund transaction between the petitioner and the 1st respondent, and since the 1st respondent denied the existence of chit fund transaction between him and the petitioner, in order to establish the chit fund transaction between the petitioner and 1st respondent, it is necessary to send Ex. D.1 to a handwriting expert, by placing strong reliance on a judgment of Kerala High Court in Kuruvilla v. Sivarama Pillai in Crl. M.C. Nos. 1598 of 1994 and 2387 of 1995, decided on 28-6-1996. The contention of the learned counsel for the 1st respondent is that the decision relied on by the learned counsel for the petitioner has no application to the facts of the case and contend that since no suggestion even is put to PW. 1 during his cross-examination that the bounced cheque was taken in connection with a chit fund transaction there are no grounds in this petition.