IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH FEBRUARY 2010 / 6TH MAGHA 1931 WP(C).No. 34959 of 2008(J) --------------------------------------- PETITIONER(S): ------------------------- C.M.VIJAYAN, S/O.MUNDAN, AGED 50 YEARS, CHIRANGARA HOUSE, NEDUNGAPRA, PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV.MR.ALEXANDER JOSEPH RESPONDENT(S): -------------------------- 1. JOSE DEVASSY, S/O.DEVASSY, AGED ABOUT 56 YEARS, KOORAN HOUSE, ANSAR LINE, ALUVA. 2. STATE OF KERALA, REPRESENTED BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.V.K.ISSAC R2 BY GOVT. PLEADER MR.P.A.SALIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/02/2010, THE COURT ON 15/02/2010 DELIVERED THE FOLLOWING: W.P.(C) NO.34959/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMPLAINT DTD. 28.10.04 IN ST. NO.1003/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT -I AT ALUVA. P2:- COPY OF THE MEMO DTD. 14.9.04 ISSUED BY THE NEDUNGAPRA SERVICE CO- OPERATIVE BANK LTD. P3:- COPY OF THE REPLY NOTICE DTD. 28.9.04 OF THE PETITIONER. P4;- COPY OF THE COMPLAINT (MP. NO.3559/08) OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALUVA. P5:- COPY OF THE FIR NO.2835/08 DTD. 3.11.08 OF S.I. OF POLICE ALUVA. P6:- COPY OF THE APPLICATION MP.NO.2469/08) DTD. 14.8.08 IN ST. NO.1003/05 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALUVA. P7:- COPY OF THE OBJECTION OF THE IST RESPONDENT. P8:- COPY OF THE CERTIFIED COPY OF THE CHEQUE DTD. 20.7.04. P9:- COPY OF THE DEPOSITION OF PW2 IN ST. 1003/05. P10:- COPY OF THE CERTIFICATE DTD. 23.9.08 ISSUED BY THE SECRETARY, NEDUGAPRA CO-OPERATIVE SERVICE BANK LTD.. P11:- COPY OF THE DEFENCE STATEMENT DTD. 21.10.08 OF THE ACCUSED IN ST. 1003/05. P12:- COPY OF THE ORDER DTD. 25.10.08 IN CMP. 2469/08 IN ST. NO.103/05. P13:- COPY OF THE JUDGMENT DT. 15.12.07 IN OS. NO.200/07 OF THE SUB COURT, PERUMBAVOOR. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE STATEMENT BY ACCUSED ON EXAMINATION UNDER SEC. 313 CR.P.C. THE ST NO.1003 /05 OF JFCM COURT, ALUVA. R1(b):- COPY OF THE EXT.R1(a). R1(c):- COPY OF THE DEPOSITION OF DW 4 IN OS. NO.200/07 OF SUB COURT, PERUMBAVOOR. R1(d):- READABLE COPY OF EXT.R1(c). R1(e):- COPY OF THE DEPOSITION OF DW1 IN OS. NO.200/07 OF SUB COURT, PERUMBAVOOR. R1(f):- COPY OF THE STOP MEMO DTD. 10.9.04 ISSUED BY COUNTER PETITIONER TO THE SECRETARY NEDUNGAPRA SERVICE CO- OPERATIVE BANK LTD. TRUE COPY P.S. TO JUDGE tss P.BHAVADASAN, J. --------------------------------------- WP(C) No.34959 of 2008-J --------------------------------------- Dated 15th February 2010 Judgment This Writ Petition is filed under Article 227 of the Constitution of India, seeking to get Ext.P12 order quashed by a writ of certiorari. By the said order, the Court below declined to send the cheque involved in this case, for expert opinion. 2. The first respondent herein laid a complaint under S.135 of the Negotiable Instruments Act against the petitioner and that was taken on file as ST No.1003/05 by the Judicial First Class Magistrate Court-I, Aluva, a copy of which is produced as Ext.P1. According to the complainant, the accused had borrowed a sum of Rs.1,30,000/- from him. In order to discharge the said liability, he had issued a cheque. The cheque, on presentation, bounced and the notice sent to the petitioner invoked a reply, containing false statements. Since the amount remained unpaid, the complaint was laid. The grievance of the petitioner herein, who is the accused, is that during the year 1997, he had monetary transactions with one WPC 34959/08 2 Mr.Jitto Antony, who is none other than the cousin of the complainant and he had paid the amount due to the said Mr.Jitto Antony. Disputes arose between them regarding the interest to be paid. It is stated that Mr.Jitto Antony received a cheque leave from the accused at that time and that cheque leaf was not returned even after the debt was discharged. The petitioner would say that the cheque has been misused by the complainant, to lay the complaint against him. 3. Attention of this Court is drawn to the fact that the cheque was returned with the endorsement “payment stopped by drawer”. It is claimed by the petitioner that at the time when the cheque was presented and returned bounced, there were funds in the account of the petitioner, sufficient to honour the amount covered by the cheque. The memo issued by the Bank while returning the cheque is produced as Ext.P2. It is also stated that the petitioner laid a complaint before the Judicial First Class Magistrate Court-I, Aluva, against Mr.Jitto Antony, which was forwarded for investigation under S.156(3) Cr.P.C. to the Police. The F.I.R. in the said complaint is produced as Ext.P5. The trial in ST No.1003/05 commenced and the WPC 34959/08 3 evidence of the complainant was over. S.313 statement of the accused/petitioner herein was also taken. 4. The petitioner submits that he had filed a petition as CMP No.2469/08 in ST No.1003/05, seeking to have the cheque sent for expert opinion so as to ascertain the period and the time of the entries in the cheque. That petition was dismissed by the Court below on the ground that in a civil suit with regard to the very same transaction, the petitioner had suffered a decree. 5. The learned counsel for the petitioner would say that by the said order, the petitioner had been greatly prejudiced and his defence has been shut out. The learned counsel highlighted that the claim of the petitioner was that the cheque was issued in 1996 whereas the complainant says that it was issued 8 years thereafter. Though the petitioner admits his signature on the cheque, it is his case that the rest of the particulars have been filled up much later. What the complainant, on the other hand, has stated in the box is that when the cheque was issued to him, it was brought filled up by the petitioner herein and the petitioner thereafter affixed his WPC 34959/08 4 signature on the same in his presence. According to the learned counsel, if the cheque is sent for expert opinion, it would reveal that the claim of the complainant is false as the period and time of the entries in the cheque could be easily ascertained by the Scientific experts. The learned counsel submitted that the impugned order is therefore unsustainable in law and has to be set aside. 6. The learned counsel for the first respondent pointed out that this is nothing but an attempt on the part of the accused/ petitioner herein to protract the proceedings and there is no bona fide in his claim at all. The learned counsel took this Court through the various documents evidencing the case and pointed out that the petitioner has no consistent case and he keeps on changing his stand quite often. Initially, his case was that he had taken a loan from one M/s.Parammen Financiers and he had issued three cheques as security for the loan, one of which is involved in this proceedings. Later on, he changed his stand and came forward with the claim that he borrowed amount from Mr.Jitto Antony and at the time of borrowal of amount from Jitto Antony, the cheque involved in this WPC 34959/08 5 proceedings was issued to him in the year 1997. 7. Attention of this Court was drawn to the fact that the signature on the cheque was admitted by the petitioner. It is also pointed out that it is extremely doubtful whether any purpose would be served by sending the cheque for the expert opinion sought for by the petitioner. 8. As rightly pointed out by the learned counsel for the respondents, on going through the records, it is very evident that this is nothing, but an attempt to protract the proceedings. Even assuming that the cheque book from which the cheque in question was issued to the complainant was issued to the accused in 1996, that may not advance the case of the petitioner much. He has admitted his signature on the cheque in question. May be that still there is burden on the part of the complainant to prove various other ingredients to attract the provisions of S.138 of the Negotiable Instruments Act. But the question to be considered is whether there is any need to send the cheque for expert opinion for the purpose mentioned in the petition filed by the petitioner. WPC 34959/08 6 9. First of all, the petitioner has no consistent case. It is interesting to note that the case put forward by the accused in this petition as well as the complaint filed by him against Mr.Jitto Antony are totally different from the one set up in the reply notice sent to the first respondent herein. In the reply notice to the first respondent, what is stated is that three cheques were handed over to Parammen Finance at the time of filing this petition as well as at the time of laying the complaint. A reading of the evidence of PW2 in ST 1003/05 before the Judicial First Class Magistrate's Court, Aluva, which is produced as Ext.P9, makes the case worse for the petitioner. It is unnecessary to go into those details for the simple reason that they may not be much relevant at this point of time and may prejudice the petitioner later. The other documents produced by the petitioner like Ext.P10 etc., are also of no help to him. 10. To crown it all, the petitioner has suffered a decree on the basis of the cheque involved in this proceedings. There he had raised the very same contentions. One has also to notice the stop memo issued by the petitioner to the bank WPC 34959/08 7 which is produced and marked by the first respondent as Ext.R1(f). There, his case is that he had lost three cheque leaves, one of which is the cheque involved in this proceedings. The records would also reveal that even though the cheque reached the drawee bank on 07.09.2004, it was kept by the bank at the instance of the petitioner till 14.09.2004. The evidence of PW2 also discloses that when the cheque came up for collection, there were no funds in the account of the petitioner to honour the cheque. 11. The claim of the petitioner to have the cheque sent for expert opinion to ascertain the period of the entries, can only be treated as a method adopted to prolong the process. 12. From the above, it is very evident that this is nothing but an attempt to drag on the proceedings without any justification or bona fides. This proceedings can only be treated as an abuse of the process of the Court. The petition is devoid of any merit and it is accordingly dismissed. P.BHAVADASAN, JUDGE WPC 34959/08 8 sta WPC 34959/08 9