NABAKISHORE BARIK Vs. BRAHMAHARI SHANKAR DASH

JUDGEMENT

(1.) By means of this application, the Petitioner seeks to set aside the order dtd. 29/8/2023 passed by the learned J.M.F.C., Jajpur Road in 1CC Case No.76 of 2022.

(2.) The background facts of the case are that the Petitioner had taken a friendly loan of Rs.3,50,000.00 (Rupees Three Lakhs Fifty Thousand only) from the Opposite Party, with an assurance to return the same within two months. After completion of the said period, when the Opposite Party demanded repayment of the borrowed amount, the accused, instead of paying the money, issued a cheque bearing No.000006 dtd. 28/10/2021 for Rs.3,50,000.00 (Rupees Three Lakhs Fifty Thousand only), drawn on Bandhan Bank, Jajpur Town Branch, in favour of the Opposite Party. The Opposite Party presented the said cheque with his banker, i.e., State Bank of India, Jajpur Road Branch, on 12/11/2021 for collection of the amount. However, the cheque was dishonoured with the endorsement "Funds Insufficient." Consequently, the Opposite Party filed a complaint before the learned J.M.F.C., Jajpur Road, under Sec. 138 of the N.I. Act. During the pendency of the trial, the Petitioner filed an application under Sec. 73 of the Evidence Act, 1872, praying for sending the cheque to a handwriting expert for examination, as the Petitioner disputed the signature appearing on the cheque as being forged and fabricated. The Opposite Party filed an objection to the said application, whereupon the learned court, instead of disposing of the petition, proceeded with the trial. Eventually, the petition was considered, and by order dtd. 29/8/2023, the learned court declined to send the cheque for examination by a handwriting expert. Being aggrieved by the aforesaid order, the Petitioner has moved this Court, inter alia, on the ground that he has a right to a fair trial and to raise objection regarding the disputed signature, and that unless the same is examined with the assistance of an expert opinion, he would be seriously prejudiced. The learned counsel also relied upon the decision in the matter of M/s. Survika Distributors Pvt. Ltd. and another vs. S.R. Retail Zone Pvt. Ltd. reported in (2018) 70 OCR 51, passed by the Co-ordinate Bench of this court.

(3.) Perused the impugned order dtd. 29/8/2023, the learned court while rejecting the prayer of the Petitioner held as follows:-