1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.563 OF 2009. Dayanand Ambadas Bhosale ... Petitioner. Versus Krishnadeo Sidram Saptale, and another ... Respondents. ... Mr.U.S.Malte, advocate for the petitioner. Mr.K.S. Patil, A.P.P. for the State. Mr.K.K. Kulkarni, advocate for the Respondent No. 1. ... CORAM : V.R.KINGAONKAR,J. Date : 17.08.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioner challenges order dated 29.6.2009, rendered by the learned Judicial Magistrate (F.C.), Tuljapur, in SCC No.323/2007. 2 3. By the impugned order, the application filed by the petitioner seeking indulgence of the trial Court to send the disputed cheque (Exh.31) to the handwriting expert came to be dismissed. 4. The petitioner is original accused in the private complaint case filed for offence U/s 138 of the Negotiable Instruments Act. He submitted application (Exh.42) after his statement U/s 3l3 of the Cr.P.C. was recorded, seeking sending of the disputed cheque relied upon by the Respondent No.l/complainant to handwriting expert for the purpose of opinion. The Respondent No.1 objected the application on the ground that since the endorsement of the Bank did not show any defect in the signature, there was no warrant to send the disputed cheque for handwriting expert. According to the Respondent No.1, such application was filed only with a view to protract the proceedings of the private complaint case. 4. Heard learned counsel for the parties and learned A.P.P. 3 5. It is significant to note that the cheque in question was returned to the drawer for the reason that the funds at the credit were not found to be insufficient. When the funds were found insufficient, the Bank had no business to compare the signatures at that stage. Moreover, the opinion of the Ministerial staff members of the Bank is of no much importance inasmuch as they are required to compare the signatures by naked eye or at the most by utilising the equipment such as Microscope or the lens. It is only a prima facie opinion available when the cheque is returned on account of variance in the signatures of the account holder of the cheque which is put forth for encashment. 6. In "T.Nagappa Vs. Y.R. Muralidhar" 2008 (5) SCC 633 : 2008 (5) MLJ 320 (SC), the Apex Court, held that where a presumption can be raised U/s 118(a) or U/s 139 of the N.I.Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places burden on the accused, he must be given an opportunity to discharge it. The Apex Court held 4 that in order to discharge such burden the accused may be permitted to refer the cheque in question for examination by the Director of Foensic Science Laboratory for determining the age of his signatures. He may also seek opinion as regards authenticity of the signature. Under the circumstances, in view of the dictum referred to above, the impugned order rendered by the learned Magistrate is arbitrary and unsustainable. 7. In the result, the petition is allowed. The impugned order is quashed. The learned Judicial Magistrate shall allow the application of the petitioner if he would deposit the necessary charges required for the purpose of sending the disputed cheque for opinion of the handwriting expert, within a period of three (3) weeks hereafter and the handwriting expert may be called upon to give his opinion within the period of four (4) weeks thereafter. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/Crwp563.09 5