THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.1999 of 2011 ORDER: The petitioner preferred this Criminal Revision Case challenging order dated 26.08.2011 passed by the II Additional Chief Metropolitan Magistrate, Hyderabad, in Crl.M.P.No.1930 of 2011 in C.C.No.65 of 2011, whereby the petition filed by the petitioner/Accused under Section 45 of the Indian Evidence Act praying the Court to send the documents Exs.P1 to P4 & P11 and other documents to the Hand Writing Expert on the cost of the petitioner in order to ascertain the age of the signatures, was dismissed. The petitioner is facing trial for the offence punishable under Section 138 of the Negotiable Instruments Act. The facts of the case, as per the complaint, is that as the accused was in urgent need of money, he intended to sell his property to the complainant, for a sale consideration of Rs.45,00,000/-, and entered into Memorandum of Understanding dated 28.10.2009 with the complainant by taking total sale consideration of Rs.45,00,000/- and assured the complainant that he will register the property on his name within six months after obtaining the Full Tank Level Clearance Certificate from the competent authority and handed over the original documents of the property to the complainant. After six months, as the accused failed to obtain the clearance certificate and prolonged the matter on one pretext or the other, on repeated requests made by the complainant, the accused issued three post dated cheques to the complainant and when the said cheques were presented in Jammukashmir Bank, Abids Branch, the same were dishonoured. Thereupon, the complainant got issued a legal notice to the accused by way of registered post and also under certificate of posting, and the notice sent by registered post was returned, whereas the notice sent under certificate of posting was received by the accused and he sent a reply notice on 03.01.2010 denying all the facts. Subsequently, the complainant filed a private complaint before the concerned Court, which has taken cognizance of the same as C.C.No.65 of 2011 and proceeded with the trial as per law. After adducing the evidence on defence side, the accused filed the present application being Crl.M.P.No.1930 of 2011 in C.C.No.65 of 2011 before the trial Court, seeking to send the documents Exs.P1 to P4 & P11 and other documents to the Hand Writing Expert in order to ascertain the age of the signatures. The learned Magistrate, after hearing the counsel for the petitioner/accused and the complainant, dismissed the said application by the impugned order dated 26.08.2011. Aggrieved thereby, the present Criminal Revision Petition is filed. Learned counsel for the petitioner submits that the petitioner gave the documents to the complainant only as collateral security for the hand loan obtained by his son V.Ravinder for an amount of Rs.2,00,000/-, as such prayed to allow the present application. He relied on the judgment i n G.Someshwar Rao vs. Samineni Nageshwar Rao[1], in support of his contention. Perused the entire material placed on record. The learned II Additional Chief Metropolitan Magistrate, Hyderabad, dismissed the present application by the impugned order dated 26.08.2011 observing as under: “It is a well settled principle that opinion of handwriting expert is nothing but a piece of evidence and unless the court arrives at its own decision on appreciating the facts and circumstances of a particular case the application to send the material to an expert cannot be ordered as a matter of course. It is also the principle of evidence that the petitioner at the earliest point of time should question that execution of the document and submit before the court his objection. But, in the instance case, the accused/petitioner on receiving the notice from the complainant gave a reply notice dated 03.01.2011 and has totally denied the transaction and receipt of the amount of Rs.45,00,000/-, he also had denied to have issued the post dated cheques and also that he never entered executed any memorandum of Understanding and other documents. No where in his reply notice he has mentioned that he has signed on blank cheques or on any blank documents which were subsequently filled up. He further did not take the defence that he has kept the original documents only for collaterial purpose for the loan of Rs.2,00,0000/- obtained by his son. It was on 11.03.2011 a notice was issued by the petitioner/accused to the complainant demanding him to return the document and it was just before filing that the chief affidavit by the complainant. It is surprising to note that the petitioner/accused never issued any notice earlier to the complainant inspite of keeping with him as many as six important documents in the year 2004.” The aforesaid observations of the trial Court clearly reveals that the defence now taken by the petitioner was not taken at the earliest point of time. Further, in his reply notice dated 03.01.2011, the petitioner/accused has totally denied the transaction and receipt of the amount of Rs.45,00,000/- and has not mentioned that he has signed on blank cheques or on any blank documents. He further did not take the defence that he has kept the original documents only for collateral purpose for the loan of Rs.2,00,000/- obtained by his son. However, during the course of trial, the petitioner/accused admitted his signature on the memorandum of agreement and undertaking and also on the cheques which he contended to have been filled up subsequently. It is true that if the trial Court feels that the disputed documents if sent to the Hand Writing Expert would furnish good material for establishing or rebutting the case and unless it thinks that the object of the party in seeking to send the documents is vexation or delaying the criminal proceedings, then the trial Court is at liberty to send the disputed documents for Hand Writing Expert. In the instant case, the trial Court has noticed that the defence now taken by the petitioner was not taken at the earliest point of time, as such, it rightly held that the present petition is filed only with an intention to drag the proceedings. Hence, this Court is of the view that the order under challenge does not suffer from any legal infirmities so as to call for interference by this Court, and as such, the present Criminal Revision Case is liable to be dismissed. Accordingly, the Criminal Revision Case is dismissed. ____________________ JUSTICE RAJA ELANGO 02.11.2011 v v [1] (2009) 14 Supreme Court Cases 677