THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL PETITION No.4855 of 2011 ORDER: Petitioner herein is the accused in the criminal case C.C.No.302/2009 on the file of the Court of the XVIII Additional Chief Metropolitan Magistrate, Hyberabad (trial Court). The offence alleged against the petitioner is the one punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short – Act). 2. The point that arises for determination in this petition is whether or not the trial court was correct in refusing to send the promissory note which is marked as Ex.P.1 to an expert for the purposes mentioned by the petitioner. 3. To appreciate the point that is raised in this petition the case of the second respondent who is the complainant in the criminal case and the defence of the accused should be noted and hereinafterwards I shall refer to the parties as the complainant and the accused. 4. A copy of the complaint in the criminal case is filed by the petitioner in the material papers. According to it, the complainant’s case is that on 03.08.2007 the accused borrowed a sum of Rs.10 lakhs from him in the presence of witnesses and in consideration of the same the accused executed a promissory note on the said date promising to repay the said amount as and when demanded by the complainant. It is the further case of the complainant that subsequently the accused failed to repay the amount and went on postponing repayment on one pretext or the other for a period of 15 months. The complainant’s further version is that subsequently the accused gave a cheque bearing No.214748 dated 30.11.2008 drawn on State Bank of Hyderabad, Sanjeeva Reddy Nagar Branch, Hyderabad, for the above amount but subsequently when the said cheque was presented it was dishonoured for want of sufficient funds in his bank account and thereafter he gave the statutory notice and filed the complaint for the offence punishable under Section 138 of the Act as he failed to pay the amount covered by the cheque. 5. According to the grounds of petition the accused, after completion of his examination under Section 313 Cr.P.C., filed a petition i.e. Crl.M.P.No.2171 of 2011 requesting the trial court to send the promissory note which is marked as Ex.P1 to an expert for his opinion for determining the age of the writings in promissory note, date of the promissory note for comparison of the same with the age of “ink signature” of the executant or complainant for the purpose of proving his defence. This is mentioned in page 2 of this petition at the foot of the said page. The complainant filed counter to Crl.M.P.No.2171 of 2011 and after hearing both sides, the trial court dismissed the said petition by its order dated 09.06.2011. It is against that order the present criminal petition is filed by the accused. The learned counsel for the accused says that since a revision is not maintainable as the order in question is an interlocutory order he has filed this quash petition. 6. Even in the arguments before this court, the learned counsel for the accused repeated the arguments which were advanced on behalf of the accused before the trial court and stated that expert opinion on the above aspects in the promissory note is necessary for the purpose of defence. It should now be noted as to what is the defence of the accused. The copies of the depositions of the complainant and his witnesses have not been filed by the accused to know as to what was his line of defence in their cross examination and he also did not file a copy of his statement recorded under Section 313 Cr.P.C. 7. In the petition i.e. Crl.M.P.No.2171 of 2011 the version of the accused is that there was another transaction covered by a settlement deed dated 08.05.2007 and at that time the complainant obtained the blank promissory note and the blank cheque towards security for the discharge of liability imposed upon him(accused) under that settlement and that he did not owe any money separately. It is also his case that subsequently he executed a gift deed dated 03.08.2007 in favour of the brother-in-law of the complainant in connection with that transaction and he did not therefore owe any money as the liability if any stood discharged by the said gift deed. The details relating to the settlement deed transaction and the gift deed transaction were not furnished. It appears that the defence of the accused is that both the blank promissory note and the blank cheque were taken on the same date in the month of May 2007 itself but there was no money transaction between him and the complainant on 03.08.2007 and he did not issue the cheque in question on 30.11.2008 and the writings in the promissory note were subsequently written by the complainant to suit his case. It was for this purpose and in order to show that the promissory note was given as a blank promissory note in May 2007 the accused is seeking reference of the same for an expert opinion to determine the age of the writings in it with the age of his signature in the promissory note and also the cheque to prove his above defence. 8. One of the grounds on which the trial court dismissed the petition is that it was filed after the matter reached the stage of defence evidence. Of-course this ground is not by itself a valid ground for rejecting a petition for sending a document to an expert and a court has to send a document to an expert even at that stage if that is necessary for adjudication of the dispute as contended by the learned counsel for the accused. So far as this aspect is concerned there is no dispute. The necessity factor has however to be seen and that is dealt with by the trial court as second ground. 9. The trial court considered the second ground and concluded that in the circumstances of this case and having regard to the defence of the accused there is no need to send the document in question to an expert and the matter can be decided on evidence. 10. While discussing the second ground, the trial court observed that the accused has admitted his signatures both on the promissory note and also the cheque in question and this assumes importance in this matter in view of the presumptions under Section 118(a) and Section 139 of the Act relating to the consideration under a promissory note, and a cheque in a prosecution for the offence under Section 138 of the Act. Now the defence of the accused is that they are not supported by consideration and they pertain to his liability in connection with a settlement deed transaction dated 08.05.2007 and the promissory note and the cheque in question were given for discharge of his liability which was imposed upon him under that settlement deed. The further version of the accused as already mentioned supra is that subsequently he executed a gift deed dated 03.08.2007 in favour of the complainant’s brother in law in respect of some property and with that gift deed his entire liability stood discharged and therefore the promissory note and the cheque are not supported by consideration and that there was no subsisting liability. The plea of the accused is that the expert opinion sought for by him is necessary to rebut the above presumptions. This aspect has to be decided on evidence. 11. The trial court has specifically stated that once a person who has issued the cheque or has given the promissory note admits his signature, the presumption under Section 118(a) of the Act with regard to the promissory note and the presumption under Section 139 of the Act regarding the cheque in question that they were issued in connection with a subsisting liability or supported by consideration begins to operate in favour of the payee or the promisee. It further observed that the defence pleaded by the accused has to be proved by him on evidence to be let in by him regarding the settlement transaction and the gift transaction pleaded by him and therefore there is no need to refer the document in question i.e. the promissory note to an expert for the purposes mentioned by the accused. In other words, the version of the accused himself is that he had a subsisting liability under the settlement transaction deed when he gave the promissory note and the cheque in question and he subsequently discharged the liability through the gift deed pleaded by him and therefore both the promissory note and the cheque became unenforceable as he discharged that liability. That being the defence of the accused the burden lies upon him to prove the said transactions to show that he had discharged the said liability and the cheque and the promissory note became devoid of consideration due to that reason. To adjudicate about this defence of the accused an expert opinion on the point mentioned by the accused is not necessary as the question whether the defence of the accused is true or not has to be established by him by other evidence. As such, the conclusion of the trial court in the impugned order cannot be said to be incorrect and in my opinion it does not suffer from any infirmity or illegality. 12. Accordingly for the above reasons the point is decided against the accused and this petition is dismissed. The trial court shall proceed to dispose of the matter without being influenced in any manner by this order. ______________________ N.RAVI SHANKAR, J 4th July 2011 CVRK