SAYED NAUSHAD ALI Vs. SIDDHARTHA SANKAR DEY

JUDGEMENT

(1.) THE petitioner has been facing his trial in connection with a case relating to an offence punishable under Section 138 of the Negotiable Instruments Act. During the said proceeding the petitioner prayed before the trial Court for sending the cheque in question to the handwriting expert for verification as to whether the cheque was filled up in his hand or not. The trial Court rejected such prayer. Against the said order petitioner moved a criminal revision before the Sessions Court and after the petitioner lost there he has now moved this criminal revision for the second time before this Court against the self -same order. Admittedly, this is a second revision and on the face of the statutory bar contained in Sub -section (3) of Section 397 of the Code of Criminal Procedure even invoking the inherent jurisdiction of this Court, such order cannot be interfered with unless a case is made out showing that the order impugned is manifestly illegal, without jurisdiction and brings out a situation, which is completely an abuse of process of Court.

(2.) ALTHOUGH the petitioner has not disputed his signature in the cheque but according to his case the cheque in question was filled up by different hand. Mere fact the cheque was not filled up by the petitioner when admittedly, the same was drawn on an account maintained by the petitioner and he is the signatory of the cheque, of course he cannot claim any immunity from being prosecuted under Section 138 of the Negotiable Instruments Act. Neither the position that the petitioner is the drawer of the cheque does alter nor the presumption under Section 139 of the N.I. Act is defeated.

(3.) GOING through the said decision, I find that the Apex Court observed, "Section 243(2) is clear that a Magistrate holding an inquiry under Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert."