1 S. B. CRIMINAL MISC. PETITION 1866/2007 M/S. TOTALA SYNTEX & ANOTHER V. SH. CHAND MAL BORALA & ANR. DATE OF ORDER : 07-11-2008 HON'BLE MR. JUSTICE C. M. TOTLA Mr. D. N. Yadav, for Petitioners. Mr. S. N.Tiwari, PP, for the State. Mr. Nadish Singhvi for Mr. Arvind Samdariya for Respondent. On complaint of respondent No.1, petitioners are facing trial for the offence of Section 138, N. I. Act. Petitioners submitted an application under Section 311, Cr.P.C., before trial Court and the learned Magistrate, partially allowing it, directed summoning of bank manager and a part of the application was dismissed. Aggrieved of partial dismissal, petitioners have preferred this petition and requests allowing of the application also quashing of order taking cognizance of 25.8.07. Learned counsel for the petitioners argued that the proceedings are based on dishonour of cheque bearing No.702878 which cheque is alleged to have been presented for payment in September, 98 - as per certificate of bank manager, such cheque was not received for payment, so summoning of bank manager specifically named by petitioner was essential. Argued that learned Magistrate, instead of summoning this named particular manager, summoned bank manager and did not summon the named one which caused prejudice to defence of petitioner. On behalf of the petitioner argued that cheque alleged to be of Rs.50,000/- and of September, 98 and whereas, as per voucher of 88, amount of this cheque is adjusted - as this voucher is denied by the complainant, so examine by expert also ought to have been allowed which is refused by learned Magistrate vide impugned order dated 25.8.07. Argued that considering certificate of the bank which is proved by the evidence of bank manager and as the cheque was never presented or submitted to concerned bank for payment, so cognizance itself is bad in 2 law. Argued that as per voucher of 1988 when amount of this cheque was not adjusted and the complainant questions genuineness, then its examination by expert is to be allowed in the interest of justice. Learned counsel for the respondent complainant argued that the learned Magistrate allowing application of petitioner, called in evidence both the bank managers – evidence of two bank managers is already recorded and a certificate is issued in the seal of bank manager, there cannot be any reason for calling any particular manager. Argued that name or particular officer is not material and in any case, this was not argued before the trial Court. Also submitted that the petitioner is facing trial, cannot ask for examination of any document by expert at the expenses of complainant. Lastly, it was also argued that the case is also posted for final arguments, after examination of bank manager and defence evidence. Learned Public Prosecutor submitted that the order of learned Magistrate is based on reasons. Submitted that accused can hardly ask for examination by expert and as per order impugned, no reason for examination at the expenses of complainant. Submitted that contentions raised in petition never raised before trial Court. Considered and perused impugned orders. Petitioner mainly requested for calling manager of the bank in defence. Learned Magistrate, allowing application, has directed summoning of manager of not only one bank but of both the banks, so contention of summoning particular named person bears no merit. Similarly, as per order on behalf of the petitioner (accused) is asserted that the voucher may be examined by expert at the expenses of complainant, no specific reason for this is assigned. Case is now posted for final arguments. Looking to above, no direction or interference under Section 482, Cr.P.C., is made out and this petition is to be dismissed. Accordingly, the petition is dismissed. (C. M. TOTLA), J. 3