( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.483 OF 2009 CRIMINAL WRIT PETITION NO.483 OF 2009 CRIMINAL WRIT PETITION NO.483 OF 2009 Prakash V.Shah .. Petitioner V/s Dilip M.Saraiya & Anr. .. Respondents Mr.Amit Pai for the Petitioner. Mr.R.R.Yadav for Res.No.1. Ms.U.V.Kejriwal, APP for State. CORAM : SMT.RANJANA DESAI & CORAM : SMT.RANJANA DESAI & CORAM : SMT.RANJANA DESAI & R.G.KETKAR, JJ. R.G.KETKAR, JJ. R.G.KETKAR, JJ. DATE : 8TH APRIL, 2009. DATE : 8TH APRIL, 2009. DATE : 8TH APRIL, 2009. P.C. P.C. P.C. 1. The petitioner is the accused in CC No.456/SS/2006 pending on the file of 14th Metropolitan Magistrate, Girgaon, Mumbai. One Shri.Dilip Sarayya has filed this complaint on 3rd February, 2006 against the petitioner under Section 138 of the Negotiable Instruments Act. Admittedly, the complainant has filed his affidavit on 2.4.2007. Cross-examination was conducted on 28.11.2007. Thereafter at the request of learned Counsel for the defence and by consent of both sides on 20.8.2008 the cross-examination of the complainant was adjourned. We are informed that the case is posted for hearing on 1.6.2009. 2. It appears that the petitioner has filed complaint ( 2 ) in the Court of Additional Chief Metropolitan Magistrate, 26th Court at Borivali against Dilip Saraiya under sections 193, 194, 199, 406, 420, 465, 467, 468, 469 and 471 of the Indian Penal Code. This complaint is filed on 25.8.2008. In short, in the complaint it is the case of the petitioner that on 3.5.2005 he had issued cheque bearing No.216737 drawn on Tamilnadu Mercantile Bank for Rs.2 lakhs in favour of Dilip Saraiya. According to him Dilip Saraiya added number 1 after number 3, in order to change the date of the said cheque to 31.5.2005 with the intention of depositing the same in the Bank so that it will be dishonoured and returned. It is pertinent to note that on 20.8.2008 the petitioner took adjournment in the pending CC 456/SS/2006 and soon thereafter he filed complaint against Dilip Saraiya. If according to the petitioner, Dilip Saraiya had forged the cheque we are surprised as to why the petitioner kept quite for such a long time after the complaint came to be filed against him and filed the complaint alleging forgery against Dilip Saraiya in August 2008. 3. It appears that on complaint filed by the petitioner, learned Magistrate passed an order under Section 156(3) of the Code of Criminal Procedure on 4.11.2008. Pursuant to this order, the Investigating Officer Mr.Chaskar registered C.R.No.19/2008 on 5.12.2008 and he made an application in CC ( 3 ) No.456/SS/2006 that the original cheque bearing number 216737 drawn on Tamilnadu Mercantile Bank be handed over to him for investigation. The said application was rejected by learned Magistrate by the impugned order. Hence, this writ petition. 4. We have heard learned Counsel Mr.Pai for the petitioner. Mr.Pai has submitted that the case is posted for further hearing on 1.6.2009. He submitted that in the circumstances the learned Magistrate ought to have granted request made by the Investigating Officer because the original cheque is needed for the purpose of investigation of the complaint registered by him. He submitted that therefore necessary orders be passed. 5. We are not inclined to accept this submission. We find no fault with the impugned order. As already noted by us, the complaint in CC No.456/SS/2006 was filed on 3.2.2006, and nothing prevented the petitioner from raising the defence of forgery in that case. We do not want to comment as to whether this contention raised by the petitioner is genuine or not at this stage. That is for learned Magistrate to decide. In our opinion handing over cheque to the Investigating Officer would mean that the case which is about to be concluded would be further prolonged. It is strenuously argued by learned Cousnel for the 1st respondent that this is a ( 4 ) delaying tactic. Prima facie, there is some substance in this grievance. But final opinion on this aspect can be expressed by the trial Court uninfluenced by our prima-facie observations, after the trial is concluded. 6. Though we are not inclined to entertain this petition we make it clear that it is open to the petitioner to raise the defence of forgery of the concerned cheque, if he so desires in the trial Court. Needless to say that if such a defence is raised, the trial Court will look into it in accordance with law, so that no prejudice will be caused to the petitioner. 7. Learned Counsel for the petitioner states that the petitioner will raise the defence of forgery in the trial Court. If such a defence is raised, we direct learned Magistrate to obtain handwriting expert’s opinion and deal with the defence in accordance with law. We expect the learned Magistrate to dispose of the pending case as expeditiously as possible. The petitioner is directed not to take unnecessary adjournments. He shall co-operate with learned Magistrate. 8. Needless to say that the officer concerned in C.R.No.19/2008 shall proceed with other investigation if any pursuant to the order passed by Learned Magistrate u/s.156(3) of the Code of Criminal Procedure, in ( 5 ) accordance with law. 9. In this view of the matter, we see no reason to interfere with the impugned order. Petition is dismissed. (SMT.RANJANA DESAI, J.) (SMT.RANJANA DESAI, J.) (SMT.RANJANA DESAI, J.) (R.G.KETKAR, J.) (R.G.KETKAR, J.) (R.G.KETKAR, J.)