IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 Crl.MC.No. 3466 of 2008() ------------------------- AGAINST THE ORDER DATED 21/08/2008 IN CRMP 315/2008 IN STC.40/2005 OF THE JFCM (MUNSIFF) COURT, PAYYANNUR. .................... PETITIONER(S): --------------- CHELLAN PUTHIYAPURAYIL MOIDEEN, S/O.MUHAMMED KUNHI,S.V HOUSE,CHOOTTAD ROAD, PUTHIYANGADI,MADAYI P.O,KANNUR DISTRICT. BY ADV. SMT.K.K.CHANDRALEKHA SRI.GOPAKUMAR G. (ALUVA) RESPONDENT(S): --------------- 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. 2. THEKKE THAIVALAPPIL ABDUL SALAM HAJI, S/O.UMMER,NEAR MOIDEEN PALLI,PUTHIYANGADI, P.O MADAYI,KANNUR DISTRICT. BY P.P. SRI. GIKKU JACOB. ADV. SRI.P.U.SHAILAJAN FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/10/2008, ALONG WITH CRMC NO. 3645 OF 2008 CRMC NO. 3655 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------------------- Crl.M.C. Nos.3466, 3645 & 3655 of 2008 ----------------------------------------------------------- Dated this the 17th day of October, 2008 ORDER The common petitioner in these three Crl.M.Cs. faces indictment in a prosecution under Sec.138 of the Negotiable Instruments Act by the respondent/complainant. The cheque in question is one for an amount of Rs.2.58 lakhs. Signature in the cheque is admitted. While the complainant contends that the cheque was issued for the due discharge of a legally enforcible debt/liability, the accused contends that the cheque was not issued for the due discharge of legally enforcible debt/liability; but was obtained under duress and coercion from the accused when the complainant filed a complaint and the parties were called before the Deputy Superintendent of Police. It is the case of the accused that the original of Ext.D2 – agreement, was also executed in the presence of the Deputy Crl.M.C. Nos.3466, 3645 & 3655 of 2008 -: 2 :- Superintendent of Police under duress. 2. Trial is almost complete. The matter has reached the stage of defence evidence. Defence witnesses have also been examined. 3. At that stage, the accused filed three applications under Sec.311 Cr.P.C. The first was to recall the complainant/P.W.1 to enable the accused to further cross-examine with the help of the two documents (Exts.D3 and D4) which were not available when the complainant was earlier cross-examined. The second petition is to direct the complainant to produce the pass books relating to the account which it is alleged that the complainant is maintaining with a particular bank. Exts.D3 and D4 relate to the same account. The prayer is that the complainant may be directed to produce those pass books. The complainant, when he was examined as P.W.1, had denied that those accounts are maintained by him or that he had issued any cheque to the accused or to the vendor of the accused in such accounts. 4. The third petition was to forward Ext.D2 agreement to the expert to facilitate securing of an opinion on the question Crl.M.C. Nos.3466, 3645 & 3655 of 2008 -: 3 :- whether the signature appearing in Ext.D2 is that of the complainant. Ext.D2, as stated earlier, is an agreement which was allegedly executed between the accused and the complainant in the presence of the police official. The complainant now asserts that he had not entered into any such agreement. The accused submits that his signature was forcibly obtained in Ext.D2. The original of Ext.D2 is not available before court. The prayer is to send Ext.D2 to the expert for comparison of the signature. 5. The learned Magistrate by the impugned order dismissed all the three applications holding that the powers under Sec.311 Cr.P.C. do not deserve to be invoked. 6. I have considered the arguments of both counsel. Having considered all the relevant circumstances, I am satisfied that the first petition to recall P.W.1 deserves to be allowed in the interests of justice. The complainant is available in India. He is appearing before court on all dates of posting, it is submitted. Directing the complainant to take the witnesses stand to enable his further cross-examination by the accused is Crl.M.C. Nos.3466, 3645 & 3655 of 2008 -: 4 :- not going to cause any hardship, inconvenience and loss to the complainant; whereas the accused had not so far got an effective opportunity to cross-examine the complainant with the help of Exts.D3 and D4 documents which he has procured subsequent to the initial cross-examination of the complainant. In these circumstances of this case, I am satisfied that the said prayer deserves to be allowed. 7. The rejection of the prayer in the second petition to direct the complainant to produce the pass books does appear to me to be fair and just. At any rate, I am not persuaded to agree that the powers under Sec.482 Cr.P.C. deserves to be invoked to interfere with that order. The complainant has already stated that he does not have such an account and he has not issued any cheque on such account. The accused will now get an effective opportunity to cross-examine the complainant with the help of Exts.D3 and D4 on the basis of my finding earlier. In these circumstances, I am satisfied that the rejection of the prayer to direct the complainant to produce the pass books does not warrant interference. Crl.M.C. Nos.3466, 3645 & 3655 of 2008 -: 5 :- 8. Regarding the third petition to send Ext.D2 to the expert for comparison, I am satisfied that the rejection of the said prayer also does not warrant interference invoking the extraordinary inherent jurisdiction. The complainant has already asserted that he has not signed the original of Ext.D2. The accused, though he asserts, that he had subscribed his signature in Ext.D2 does not want to stand by Ext.D2. He also disputes the same. The original of Ext.D2 is also not available. It may not be impossible for an expert to hazard an opinion by looking into the photocopy of the disputed document also. But I am satisfied, in the facts and circumstances of this case, that the rejection of the prayer to send Ext.D2 to the expert does not, at any rate, warrant interference by invoking the jurisdiction under Sec.482 Cr.P.C. 9. In the result: (a) Crl.M.C.Nos. 3645 & 3655/08 are dismissed. (b) Crl.M.C.No.3466/08 is allowed. (c) The learned Magistrate shall ensure that the accused is granted an opportunity to further cross-examine the Crl.M.C. Nos.3466, 3645 & 3655 of 2008 -: 6 :- complainant/P.W.1 with the help of Exts.D3 and D4. 10. Crl.M.C.No.3466/08 is allowed to the above extent. 11. The complainant shall appear before the learned Magistrate on the next date of posting and get ready to face cross-examination. The petitioner/accused shall also get ready for cross-examination of the complainant on the next date of posting. Every effort shall be made by the learned Magistrate now to expeditiously dispose of the prosecution under Sec.138 of the N.I. Act which, it is seen, is pending from 2005. 12. Hand over a copy of this order to the learned counsel for the petitioner. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. Nos.3466, 3645 & 3655 of 2008 -: 7 :-