1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Crl. Miscellaneous Petition No.487/2010 (Shankar Lal Sharma Vs. State of Rajasthan & Anr.) Date of Order : 23.03.2010 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Ajay Tyagi for Mr.Paras Kuhad, for the petitioner. Mr.Laxman Meena, PP. By the Court: Aggrieved by the order dated 11.11.2009 whereby the application moved by the petitioner under Section 243 of the Criminal Procedure Code (hereinafter referred to as “the Cr.P.C.”) read with Section 73 of the Evidence Act was rejected, this petition has been filed. The petitioner moved an application seeking hand writing expert report for the writing on the cheque. It was alleged that three cheques have been filled by different persons and otherwise, shows that it was not filed on the same date. The application was rejected by the Court below holding that perusal of cheques does not show that hand writing thereupon is not of one and the person. The petitioner has not otherwise denied his signature on the cheque, thus it is not a case where blank instrument is misused by someone. Learned counsel for the petitioner submits that finding so recorded by the Court below is not proper rather looking to the judgment of the Hon'ble Supreme Court in the case of T.Nagappa Vs. Y.R.Murlidharan reported in 2008(5) SCC 633, the Court 2 should have sent the cheque for hand writing expert opinion. The petitioner is having valuable right of defence, however, vide the impugned order, aforesaid aspect has not been looked into rather the provisions of Section 243 of Cr.P.C. have been ignored. It is further contended that certain documents were lying on the record file, however, on 10.11.2009 initially, it was recorded that those documents were not filed by the complainant and on the same date, a further order sheet was drawn that even the accused-petitioner had not filed those documents. These were the documents pertaining to Share Capital of the M/s. Panchsheel Colonizers Private Ltd. It is urged that documents so taken out from the record are material, thus petitioner may be given liberty to make an application as per the provisions of law for summoning of those documents. I have carefully examined the issues raised by the learned counsel for the petitioner and scanned the matter carefully. So far as the first issue pertaining to hand writing expert opinion is concerned, it would be necessary to make a reference of Section 73 of the Evidence Act. Perusal of the aforesaid provision shows that expert opinion can be called, however, there exists discretion in the hands of the Magistrate concerned. It is a case where learned Magistrate shown his satisfaction to the issue raised before him as the cheques seem to be written by one person and the fact that signature thereupon had not been denied by the 3 petitioner. If the allegation of the petitioner is taken note of that the cheques were filled by others, the issue has no bearing looking to the provisions of Section 20 of the Negotiable Instruments Act of 1881. This is apart from the fact that petitioner had not came out with a case of misuse of cheques rather looking to the transactions between the parties, the Court below passed a detailed order. Looking to the aforesaid, I do not find any error in the impugned order and accordingly, I am not inclined to accept this petition, hence the same is dismissed on the ground aforesaid. So far as the prayer of the petitioner to grant him liberty to make an application for summoning of the documents is concerned, the petitioner is always free to make an application for summoning documents as per the provisions of law. In view of the aforesaid, the petitioner would be at liberty to move an application for summoning of documents as per the provisions of law. If any such application is moved, then the learned Magistrate would pass appropriate order as deems fit in the facts and circumstances of the case. The aforesaid observations has been made in view of the submissions made by the learned counsel for the petitioner. (M.N. BHANDARI),J. Preety Item NO.S-4