HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL REVISION CASE No.656 of 2011 ORDER:- Heard the petitioner’s counsel, the Additional Public Prosecutor and the first respondent’s counsel. 2. The petitioner in this revision is the accused in C.C.No.290/2010 on the file of the Court of II Additional Judicial First Class Magistrate, Tanuku (trial court). The first respondent herein is the complainant in the case. The said case pertains to an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. When the case was at the stage of Section 313 Cr.P.C examination of the petitioner/accused, he filed a petition i.e. Crl.M.P.No.5579 of 2010 before the trial court for sending the two promissory notes dated 07.10.2007 and 25.05.2009 relied upon by the complainant in question to the Government Security Press concerned to prove that the adhesive stamps affixed on the two pronotes were issued or released by the Government in the year 2009. With regard to pronote dated 25.05.2009 the plea of the petitioner is that the stamp affixed thereto was released after that date. The petitioner says that the opinion of the Security Press on this aspect is necessary to show that both the above pronotes were brought into existence only to harass him and in fact no amount was due from him to the complainant and the two cheques also relied upon by the complainant must therefore be rejected as having not been issued in discharge of a subsisting liability. The complainant filed counter to the above petition and his plea is that the petitioner never made any suggestions to him or his witnesses raising the above aspect relating to the stamps and therefore at the fag end of the matter it is not open for the petitioner to file such a petition. 4. The trial court after considering the respective cases of the parties has by its order dated 25.02.2011 dismissed the said petition. It is questioning that order the present revision is filed by the petitioner/accused. 5. A copy of the complaint in the aforesaid case is filed by the petitioner. The version of the complainant is that the petitioner first borrowed a sum of Rs.1,50,000/- from him on 07.10.2007 and again on 25.05.2009 he borrowed another sum of Rs.1,50,000/- from him and executed two promissory notes on the above dates respectively promising to repay the amounts on demand with interest at 18% per annum. His further version is that subsequently in partial discharge of the amounts due under the aforesaid two pronotes he gave two cheques one dated 22.10.2009 and the other dated 23.10.2009 each for Rs.1,00,000/- drawn on the District Co-Operative Central Bank Limited, Dwaraka Tirumala branch and both the cheques were dishonoured for want of sufficient funds. He then says after issuing the statutory notice under the Act and as the petitioner did not pay the amounts he brought the complaint. 6. A copy of the defence statement filed by the petitioner if any in the trial court is also not filed here. Similarly the petitioner also did not file copies of the depositions of the complainant and his witnesses if any before this court to know what was his line of defence. 7. The trial court in the impugned order in substance observed that one of the promissory notes is dated 25.05.2009 and therefore the petitioner’s plea that the stamps of the year 2009 were used on it cannot have any significance as he already admitted his signatures in the said pronote. In fact the trial court dealt with the petition as if it was filed only to send the promissory note dated 07.10.2007 to the Government Security Press for ascertaining whether the stamp affixed on it was released in 2009. It then proceeded to hold that the petitioner did not make any suggestions to the complainant in his evidence raising the present line of defence and since the case was based on cheques about which a presumption operates in respect of consideration under the Act, it observed that the matter can be decided on that basis. It further held that it was not the case of the complainant that the two cheques were issued only in discharge of the debt covered by the pronote dated 07.10.2007 and that his case was that the cheques were issued in discharge of the debt under both the pronotes i.e. dated 07.10.2007 and also 25.05.2009 and it is seen that this observation was made on the premise that the case can be decided with regard to the cheque issued for discharge of the debt under the second pronote dated 25.05.2009. It further observed that the petition was filed at a belated stage i.e. when the matter was at Section 313 Cr.P.C. examination stage and it made that also a ground for dismissing the petition. Having regard to the circumstances of the case it is difficult to accept this approach of the trial court as correct. 8. The defence of the petitioner as stated in the petition is that he did not execute the pronotes or the cheques and that on one occasion when he travelled in the car of the complainant he forgot two empty promissory notes and two empty cheques in the said car and the complainant pressed them into service. This is stated by the petitioner in para-4 of his petition i.e. Crl.M.P.No.5579 of 2010 filed by him in the trial court for the purpose of sending the pronotes to the concerned expert i.e. the Government Security Press, Nasik to show that the stamps affixed on the two pronotes in question were released long after the dates of the said pronotes and that therefore the blank pronotes must be held to have been pressed into service. The said reasons for seeking expert opinion are also stated in this revision. 9. The matter is now at the stage of Section 313 Cr.P.C. examination. It is true the above defence of the petitioner may look unbelievable but one should not forget that some times truth may be stranger than fiction. It is however not the case of the petitioner that in the cross-examination of the complainant and his witnesses if any his counsel made suggestions to them regarding his line of defence based on the dates of release of stamps affixed on the pronotes. Thus this is a minus point for the petitioner and it was not open for him to file the present petition for expert opinion before commencing his evidence and making out a case for it. The plea of the petitioner/accused is that the complainant has stealthily removed blank pronotes and cheques with the signatures and filed this complaint only to harass him. If the petitioner is able to establish this defence, that may be a ground for him to rely upon it even in respect of the cheques if it is otherwise found that they are not supported by any other consideration except the pronotes mentioned by the complainant. 10. To repeat, the matter is at the stage of Section 313 Cr.P.C examination and the petitioner has to now lead his evidence in the trial court if he chooses to do so. In the circumstances and having regard to the above aspect I am of the opinion that the petitioner should first lead his evidence in the trial court in support of his above defence and after leading such evidence if he is able to show before the trial court that expert opinion is necessary to clinch his version that stamps on pronotes were released subsequent to the dates of pronotes he may apply to the trial court for calling the expert opinion requested by the petitioner and it may decide that aspect on its own merits seeing the evidence of the petitioner initially let in by him. The trial court rejected the petition filed before it for expert opinion on the ground of delay also. It may however be noted that delay by itself is not a factor to reject an application for expert opinion and if the circumstances of the case justify to call for an expert opinion, such an opinion can be called for even if it is filed belatedly and the trial court may keep this aspect in view in deciding the application if any filed by the petitioner subsequently for the expert opinion sought for by him. 11. For the aforesaid reasons the impugned order of the trial court is set aside and the revision case is disposed of in the above terms. ______________________ N. RAVI SHANKAR, J 18th August 2011 CVRK