IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 Crl.MC.No. 1776 of 2009 -------------------------------- AGAINST THE ORDER DATED 28/04/2009 IN CMP.833/2008 IN ST.211/2006 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM .................... PETITIONER(S): ACCUSED ---------------------- A.A. RASHEED, C/O.A.A. RASHEED AND SONS, FIRE WORKS MERCHANTS, CHAMAKKADA, KOLLAM - 691 001. BY ADV. SRI.B.SURESH KUMAR RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------- 1. RAMAUTAR KUMPAWAT, C/O. VIJAY AND COMPANY, MUKKADA BAZAR, KOLLAM - 691 001. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 1776 of 2009 ================== Dated this the 1st day of June, 2009. O R D E R Petitioner is the accused in S.T.No.211/2007 taken cognizance by the learned Magistrate under Section 138 of the Negotiable Instruments Act on a complaint filed by 1st respondent. At the stage of defence evidence, petitioner filed C.M.P.No.833/2008, an application to send the dishonoured cheque along with Ext.D4(a) counter foil of the cheque for comparison with Ext.P1 contending that the report of an expert is necessary to disprove the case of 1st respondent. Learned Magistrate under Annexure A2 order dismissed the application. It is challenged in this petition filed under Section 482 of the Code of Criminal Procedure. 2. Learned Counsel appearing for the petitioner was heard. Crl.M.C.No.1776/2009 -2- 3. Learned Counsel submitted that account in the Bank standing in the name of the petitioner was closed on 19/9/2001 and Ext.P1 cheque was presented for encashment only on 18/1/2005 and the evidence show that writings in Ext.P1 cheque is not that of the petitioner and Ext.D4 counter foil of the cheque establish that Ext.D4(a) counter foil was written by the petitioner and therefore a report of the expert is necessary for comparison and Annexure A2 order is to be quashed. 4. The question whether the offence alleged against petitioner is made out or not for the reason that the cheque was issued from an account which was allegedly closed on 19/1/2001, as canvased by the petitioner, is to be decided in the case on the basis of evidence. A report of the expert sought for in CMP No.833/2008 is not helpful for deciding that aspect. The question whether Ext.P1 is to be compared with the writings in Ext.D4(a) was rightly considered by the learned Magistrate. I find no reason to disagree with that Crl.M.C.No.1776/2009 -3- finding, exercising the inherent power provided under Section 482 of the Code of Criminal Procedure. I find no reason to send Ext.P1 along with Ext.D4(a) for comparison as sought for. Petitioner is at liberty to challenge Annexure A2 order along with the final judgment if he is so advised. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE dkr