1. The petitioner is an accused in Criminal Case No.87 of 2019 filed by the respondent No.2 before the Court of learned J.M.F.C., Gandhinagar under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the NI Act "). The petitioner seeks to challenge the order passed by the learned 3 rd Addl. Sessions Judge, Gandhinagar in Criminal Revision Application Page 1 of 11 Downloaded on : Mon Jun 27 22:09:35 IST 2022 R/SCR.A/11178/2021 JUDGMENT DATED: 24/06/2022 No.29 of 2021 whereby, the revisional Court rejected the application of the petitioner wherein he had made a prayer for sending the cheque to F.S.L. for opinion of the Hand-writing Expert and forensic science opinion qua the ageing and writing on the cheque.

2. Learned advocate Mr. Jadeja submitted that the rejection of the application has led to the denial of opportunity of defence and fair trial. Mr. Jadeja stated that the petitioner accused was duped by his friend in collusion with the complainant of complaint filed under Section 138 of the NI Act. The petitioner submits that the complainant had alleged that the petitioner became his friend through one Amratbhai Gopalbhai Patel and under the friendship, the present petitioner had demanded an amount of Rs.10 Lacs, which, he had assured to return within a year. Since he had failed to return the money that was lent by the complainant to the present petitioner, the petitioner gave him a cheque dated 25.10.2018 and informed him to deposit the same day so that he would get his money so noted in the cheque. On deposit of the cheque, it got returned with the endorsement of "Account closed" and therefore, the complainant issued Notice to the petitioner and lodged the complaint.

3. Mr. Jadeja submitted that the petitioner denied the charge and therefore, the trial Court proceeded to adjudicate Page 2 of 11 Downloaded on : Mon Jun 27 22:09:35 IST 2022 R/SCR.A/11178/2021 JUDGMENT DATED: 24/06/2022 the matter. During the course of trial, the petitioner gave an application Exhibit-32 for Hand-writing expert's opinion qua the ageing of ink and writing on the cheque as well as opinion of Hand-writing expert to avail the benefit of defence.

4. Mr. Jadeja submitted that from the very beginning, it was the case of the petitioner that the cheque was obtained by his partner Amratbhai Gopalbhai Patel, who was in need of money and he wanted to show the cheque for the purpose of security to the complainant, who was in the business of lending money. He stated that it was the specific case of the petitioner that cheque was given to his Ex-partner and thus, the cheque was not for any existing debt or liability. He stated that grievance was raised before the trial Court by moving application Exhibit-32 in Criminal Case No.87 of 2019 but the trial Court rejected the same vide order dated 12.06.2019. Aggrieved by the same, Criminal Misc. Application No.56 of 2019 was moved before the Sessions Court, Gandhinagar and the Sessions Court allowed the revision application on 26.09.2019 and set aside the order and remanded the matter to decide application Exhibit-32 afresh in accordance with law. Upon adjudicating application Exhibit-32, Mr. Jadeja stated that the trial Court, without assigning any reasons, decided the application Exhibit-32 on 04.03.2021. Aggrieved by the order, Criminal Revision Application No.29 of 2021 was filed before the Sessions Court, which came to be dismissed on 23.08.2021.

R/SCR.A/11178/2021 JUDGMENT DATED: 24/06/2022

5. Mr. Jadeja submits that the accused has the right to defend himself and in the process of raising a bonafide and probable defence, he had filed the application. According to the petitioner, the cheque was signed in the year 2011 and if such a defence of the accused is supported by the opinion of the expert, then it would certainly shift the burden from the accused to the complainant. He submitted that the proposition of law under Section 138 of the NI Act, which is to be read along with presumption under Sections 139 and 118 of the NI Act requires rebuttal evidence and therefore, he stated that fair opportunity ought to have been granted by both the Courts below.

6. In support of his arguments, Mr. Jadeja relied upon the following judgments:

7. Mr. Jadeja further stated that the petitioner had raised the grievance before the Dehgam Police Station by lodging a Page 4 of 11 Downloaded on : Mon Jun 27 22:09:35 IST 2022 R/SCR.A/11178/2021 JUDGMENT DATED: 24/06/2022 complaint under Sections 406 , 420 , 506(2) and 114 of IPC by making respondent No.2 and his partner - Amratbhai Gopalbhai Patel as accused wherein, the said complaint culminated into proceedings under Sections 107 and 115 of Cr.P.C. Mr. Jadeja stated that the statement of Amratbhai Gopalbhai Patel and the complainant, present respondent No.2, was recorded by the police, which also supports the fact that cheque was given by the petitioner to Amratbhai Gopalbhai Patel in the year 2011.

8. Learned advocate Mr. Harsh Khemka for respondent No.2 contended that the Sessions Court while rejecting the revision application has considered the provisions of Sections 20 and 87 of the NI Act, which lays down the presumption that signature is to be believed and therefore, it considered the submissions of the complainant and found no reasons to send the disputed cheque to F.S.L. for Hand-writing expert's opinion. He submitted that the trial Court has observed in the order that the signature is admitted by the accused and the complainant has admitted about his filling up of the body of the cheque and has observed that the ink may be of the manufacturing year but would have been used on the day when it was signed. It is also observed that the disputed cheque was given as security in the year 2011 and the allegation is that the same was misused in 2018. Thus, on the above grounds, it was urged before the trial Court to send the cheque for opinion of Page 5 of 11 Downloaded on : Mon Jun 27 22:09:35 IST 2022 R/SCR.A/11178/2021 JUDGMENT DATED: 24/06/2022 the Hand-writing expert. He, thus, submitted that the revisional Court had found that the grounds on which the revision application was filed was in the nature of proposed defences, which were required to be dealt with by the trial Court while deciding the case finally and the revisional Court, thus, found that any discussion on the issues would create prejudice to both the parties while the Court was pleased to observe that accused has admitted the issuance of cheque and his signature and that the blank cheque was given by him. Further, from the material on record, the revisional Court found that there is no dispute about the amount mentioned in the cheque.

9. Having heard the learned advocates on record, it appears that the petitioner has raised the grievance that the disputed cheque was a blank cheque issued in 2011 and has been misused in 2018. As per the accused, the complainant is not the holder in due course. The cheque was fabricated in the year 2018 and it was not against any legal debts or liabilities. It was also urged that the complainant had no source of income to lend Rs.10 Lacs and thus, there was no enforceable debt. The accused had also filed a complainant under sections 406 , 420 , 506(2) and 114 of IPC and thereafter, the Chapter Case under Section 107 of Cr.P.C. was filed against the complainant and witness Amratbhai Gopalbhai Patel. It is alleged by the petitioner accused that Amratbhai Gopalbhai Page 6 of 11 Downloaded on : Mon Jun 27 22:09:35 IST 2022 R/SCR.A/11178/2021 JUDGMENT DATED: 24/06/2022 Patel, who was his partner, has given the said cheque in the year 2011 for 2-3 days as the complainant insisted for a blank cheque. It was informed to the petitioner accused that the complainant had torn off the cheque and therefore, the petitioner, on assurance so given, had not proceeded further but thereafter, according to him, the complainant and Amratbhai Gopalbhai Patel in collusion have misused the cheque and filed false complaint under section 138 of the N.I. Act.

10. In T. Nagappa v. Y.R. Muralidhar (supra), the Apex Court has observed as under:

8. What should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.

9. The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide.

The issue now almost stands concluded by a decision of this Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs. ) [(2007) 2 SCC 258] (in which one of us, L.S. Panta, J., was a member) wherein it was held :

11. The decision rendered in Kalyani Baskar v. M.S. Sampoornam (supra) was followed in the case of T. Nagappa v. Y.R. Muralidhar (supra). In the present case, in his complaint filed under Section 138 of the NI Act, the complainant has stated that the accused had given him the disputed cheque with his signature on it and had informed him that if the cheque is deposited on the date so mentioned, he would receive the amount mentioned in the cheque. As per the complainant, after depositing the said cheque on 15.11.2018, the same got returned owing to the account being closed. Thus, after legal notice, the complaint was filed. The facts in Page 9 of 11 Downloaded on : Mon Jun 27 22:09:35 IST 2022 R/SCR.A/11178/2021 JUDGMENT DATED: 24/06/2022 the complaint suggest that the signed cheque was handed over but the facts in the complaint also suggests that he was informed that the complainant would receive the amount so mentioned in the cheque. While it is the case of the complainant that it was a cheque that was signed "in blank"

12. For the foregoing reasons, the application is allowed. Both the impugned orders dated 23.08.2021 passed by the learned 3rd Additional Sessions Judge, Gandhinagar in Criminal Revision Application No.29 of 2021; and dated 04.03.2021 passed by the learned 5th Additional Chief Magistrate, Page 10 of 11 Downloaded on : Mon Jun 27 22:09:35 IST 2022 R/SCR.A/11178/2021 JUDGMENT DATED: 24/06/2022 Gandhinagar below application Exhibit-32 in Criminal Case No.87 of 2019 are quashed and set aside. The trial Court concerned is directed to send the disputed cheque to F.S.L. for opinion of the Hand-writing Expert, as has been prayed for in the application Exhibit-32. All concerned to make sincere efforts to ensure that the trial is concluded as expeditiously as possible. Rule is made absolute.

(GITA GOPI, J) PRAVIN KARUNAN Page 11 of 11 Downloaded on : Mon Jun 27 22:09:35 IST 2022