SOHANLAL SINGHAL Vs. SUNIL JAIN

JUDGEMENT

(1.) This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 [in short the Code ] by the petitioners being aggrieved by the order dated 06.05.2014 passed by Judicial Magistrate First Class, Gwalior in Criminal Complaint No. 5739/2013 whereby the application under Section 45 of Evidence Act, 1872 [for brevity Act 1872] sending the disputed cheque for examination by the handwriting expert was dismissed.

(2.) Brief facts of the case are that respondent filed a private complaint under Section 138 of Negotiable Instruments Act, 1881 [in short the Act 1881] wherein it was alleged that accused received Rs. 5,00,000/- from the respondent/complainant and for paying the same issued a cheque No. 000097 of Allahabad Bank dated 11.03.2013 in favour of the complainant. It was further alleged that cheque was presented in the bank by the complainant and the same was dishonored with the endorsement opening balance insufficient, hence, issued a legal notice, thereafter, private complaint has been filed before the competent Court. During the pendency of the complaint, petitioners/accused filed an application under Section 45 of Act 1872 and the same was dismissed vide order dated 26.09.2013 on the ground that the accused can take this steps at the stage of defence. It is further submitted that evidence was produced by the respondent/complainant before the Court and the same was cross examined by the counsel of the petitioners and it was admitted by the complainant that he has not completed any formalities with regard to the transaction. Complainant closed evidence and Court recorded examination of the petitioner under Section 313 of the code and fixed the case for defence.

(3.) At the stage of defence, petitioners filed an application under Section 45 of Act 1872 for sending the disputed cheque for examination by the handwriting expert. Respondent did not file any reply and after hearing of the parties, learned Magistrate dismissed the same vide order dated 06.05.2014.