{1} Cri. Application No.5155/2010 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5155 OF 2010 Subhash Motiram Koli APPLICANT VERSUS Bhatu Bhila Patil RESPONDENTS ....... Mr.Girish Rane, Advocate for the applicant ....... [CORAM : A.V.POTDAR, J.] DATE: 27 th September 2011 PER COURT: 1. By this application, the applicant-original accused, has challenged the order dated 14.10.2010 passed below Exhibit-33 in SCC No.600/2008. 2. Record shows that the respondent has filed complaint u/s 138 of the NI Act, alleging that the cheque given by the applicant in discharge of legal dues, when presented in the bank, is dishonoured for want of sufficient funds. Hence, after serving {2} Cri. Application No.5155/2010 statutory notice, the complaint came to be filed. After recording verification, process was issued by the trial court. Particulars of the accusation were explained to the accused to which the applicant pleaded not guilty. Thereafter, the parties were put to trial. It appears that after the evidence of the complainant is over, the applicant was also examined u/s 313 of the Criminal Procedure Code. Thereafter, an application at Exhibit-33 claiming that the signature on the cheque is not of the applicant-accused but the same is forged one and hence requested to send the same for the opinion of the hand writing expert. Vide impugned order, dated 14.10.2010, the said application (Exhibit-33) came to be rejected by the trial court. It is observed by the trial court that during the course of cross examination of the complainant suggestion was given to the complainant that the complainant had obtained blank signed cheques from the applicant accused and in view of the said suggestion the trial court is of the view that the applicant is now estoped from claiming that the signature on the cheuqe is forged one and hence rejected the application. 3. Learned counsel for the applicant placed reliance on {3} Cri. Application No.5155/2010 the judgment of the Apex Court in “Kalyani Baskar V/s M.S.Sampoornam” 2007 (1) Bom C.R. (Cri) 1 in respect of the powers conferred on the Magistrate to refer the disputed cheque to the hand writing expert. Further reliance is placed on the judgment of this Court in “Arun Sheshkaran Kochar V/s Sunil Fulchandji Bharut” 2011 ALL MR (Cri) 2838 wherein it is observed that u/s 243 (2) r/w section 247 of the Criminal Procedure Code, the accused have a right of fair trial and he is entitled to defend himself as his fundamental right enshrined under Article 21 of the Constitution of India. Considering the suggestion given to the complainant in his cross examination, the ratio laid down in both the judgments cited by the applicant are not applicable to the present case. To exercise the right of fair trial as contemplated u/s 243 (2) r/w section 247 of the Criminal Procedure Code is totally different from exercising the discretion to wipe out certain admissions given by way of suggestion, which is not permissible in law. 4. After examining the impugned order, I do not find any {4} Cri. Application No.5155/2010 fault in the same, which necessitates interference by this Court. 5. In the result, the application, which is sans merits, stands rejected summarily. [A.V.POTDAR, J.] drp/B11/criapln5155-10