HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.4413 of 2011 ORDER:- The petitioner herein is the accused in C.C.No.56 of 2009 on the file of the VI Additional Judicial First Class Magistrate, Rajahmundry (trial Court). That complaint case was filed by the second respondent herein alleging against the petitioner an offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act, 1882 (for short – the Act). He filed this petition questioning the order dated 19.04.2011 passed in Crl.M.P.No.601/2011 in C.C.No.56/2009 of the trial Court by which it ordered that the cheque in question be sent to a handwriting expert at the instance of second respondent. 2. The defence of the petitioner was one of denial and it appears that he even denied his signature on the cheque in question which was marked as Ex.P.1 in the trial. In the course of trial in his defence evidence the petitioner on his behalf examined one G.Ramkumar, Manager of State Bank of India, Visakhapatnam as D.W1 as the cheque in question was drawn on an account in the said Bank. It appears that in his evidence it came to light that one Tatikonda Samuel was the holder of that account in the said Bank on which the cheque was drawn but not the petitioner. 3. It is thus clear that the petitioner has examined the above Bank manager in support of his defence that the question of his issuing a cheque on a bank account which does not belong to him cannot arise and therefore his defence should be accepted and presumably in support of this defence he examined the above witness D.W1. 4. Thereafter the complainant in the above criminal case who is the second respondent herein filed Crl.M.P.No.601 of 2011 before the trial Court requesting it to send the cheque in question to a hand writing expert in order to prove her case that the cheque in question does contain the signature of the petitioner and that it was he who issued the cheque and cheated her. It is also seen that in the said petition the petitioner took a plea that if the hand writing expert’s opinion comes in her favour the petitioner should also be prosecuted for the offence punishable under Section 420 IPC by even amending or altering that charge. 5. The petitioner/accused filed counter before the trial Court opposing the above petition of the complainant. His main plea is that the complainant cannot come up with such a petition when the matter is at the stage of his evidence and having failed to take all the steps necessary in her evidence to prove her case, the complainant ought not to be allowed to file such a petition. He further pleaded that the request of the petitioner to send the cheque in question to a hand writing expert and then to alter the charge is not permissible and he further says that alteration of charge is totally outside the scope of the criminal case and therefore it ought not to be allowed. 6. The trial Court after considering both the cases of the parties has by its order dated 19.04.2011 allowed the petition and decided to send it to hand writing expert and for that purpose it directed the complainant to deposit a sum of Rs.3,000/- towards expert’s fee in the trial Court. That order is now challenged by the petitioner/accused in this petition. It is not known whether the complainant has deposited that amount but that aspect can be looked after by the trial Court. 7. The question now is whether the trial Court in the circumstances of this case justified in directing that the document i.e. the cheque in question be sent to the hand writing expert. 8. The learned counsel for the petitioner raised some contentions which were raised by the petitioner/accused before the trial Court and his main contention is that the complainant cannot now be permitted to alter the charge as that would be outside the scope of the case and in that view of the matter and also having regard to the fact that the complainant did not take any steps earlier she cannot now be permitted to apply for sending the document i.e. the cheque in question to hand writing expert. The respective cases of the parties before the trial Court relevant to the point have already been set out supra. 9. It may at the risk of repetition be noted that it is the version of the complainant that it is the petitioner who has issued the cheque in question and at that time she did not know that the bank account on which the cheque was issued did not belong to the petitioner. In this connection it should also be noted that the petitioner himself filed a copy of the cheque return memo dated 24.12.2008 which is found at page-15 of the paper book filed by the petitioner himself. This cheque return memo does not show that the account belongs to Tatikonda Samuel and therefore the version of the complainant that she did not know previously that the account in question belonged to Tatikonda Samuel can be accepted. The petitioner did not file any other document which has been marked before the trial Court to show that even before the commencement of the case or while adducing her evidence the petitioner became aware that the account belongs to Tatikonda Samuel. It is the version of the petitioner that she came to know about the above fact only through the evidence of D.W1 who is the Bank Manager when he spoke about the same and filed the bank statement. In these circumstances, the complainant’s version in this behalf can be accepted. 10. It is the version of the complainant that the petitioner gave a cheque to her which is drawn on a bank account which does not belong to him and she innocently believed the petitioner and took that cheque and it is her specific case that the petitioner himself signed the cheque in question which is given to her. Thus in the above circumstances it can be said that the complainant is completely justified in requesting the court by filing the present petition to send the cheque in question to hand writing expert to ascertain whether the petitioner gave it or not. It should be noted that the circumstances in this case do show that the complainant became aware of the fact that the bank account does not belong to the petitioner only after D.W1 gave his evidence and not before. In such a situation the complainant’s request ought to be considered and a perusal of the trial Court’s order would show that it has given sufficient reasons to justify its conclusions. Regarding the question of alteration of charge, Sec.216 Cr.P.C says that a court has always the power to alter charge at any time before judgment and a procedure is prescribed in that behalf. If alteration of charge is necessitated in the case the court can decide about the same by following the procedure. Hence the petitioner’s contention in that behalf cannot be accepted. The learned counsel for the petitioner also could not point out any illegality or infirmity in the order of the trial Court which calls for interference by this Court. 11. The point is accordingly decided against the petitioner and this petition is dismissed at the admission stage confirming the order of the trial Court. The trial Court shall proceed to take up this matter expeditiously and decide all the aspects including the alternation of charge if any as held by it. ______________________ N. RAVI SHANKAR, J 16th June 2011 CVRK