IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.Rev.Pet.No. 3433 of 2010 ------------------------------ AGAINST THE ORDER DATED 1/11/2010 IN MP 1115/2010 IN CC.3643/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER: PETITIONER/PETITIONER/ACCUSED -------------------------------------------------- P.K.UTHUPPU, S/O. KURIAKOSE, PAZHUKALIYIL HOUSE, MUVATTUPUZHA. BY ADV. SRI.P.V.ELIAS RESPONDENTS: COMPLAINANT AND STATE ------------------------------------ 1. MATHEW KUNJUMON, MALAMEL HOUSE, THRIKKAKARA P.O., KOCHI-21. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.BABU KUMAR FOR R1 R2 BY PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/5/2011, THE COURT ON 30/06/2011 PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P..NO. 3433 OF 2010 ======================= Dated this the 30th day of June 2011 ORDER The revision petitioner is the petitioner in M.P.No.1115/2010 in C.C.No.3643/2007 on the file of the Judicial First Class Magistrate-I, Aluva. The above C.C. was filed by the first respondent herein against the revision petitioner alleging offence punishable under Section 138 of the Negotiable Instruments Act. The above mentioned petition was filed by the revision petitioner/accused for sending the disputed cheque for examination of the handwriting expert and to obtain a report. That petition was opposed by the complainant and filed objection. The learned Magistrate dismissed the petition by the impugned order dated 1/11/2010 which is challenged in this revision. CRRP 3433/2010 -2- 2. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. Heard the learned Public Prosecutor also. 3. It is submitted by the learned counsel for the revision petitioner that the defence set up by the revision petitioner/accused before the trial court was that Ext.P1 cheque was not issued by the petitioner to the first respondent and the signature in Ext.P1 cheque was denied. The contention raised in the objection filed by the first respondent/complainant was that the petition filed by the accused was highly belated and was filed to protract the matter. 4. On a perusal of the impugned order, it is revealed that the learned Magistrate himself compared the disputed signature in the cheque with the admitted signature in the specimen signature card and the vakalath and came to the conclusion that both are very identical. The non-production of the reply notice by the accused before the court was high lighted by the learned Magistrate. Further, the learned Magistrate was of the opinion that the request to send the cheque for expert's opinion was made at the fag end of the trial and was of the view that it was to CRRP 3433/2010 -3- protract the trial of the case and dismissed the petition. 5. It is the primary principle that opportunity should be given to the parties in all cases to prove their respective contentions and no such opportunity should be denied to the parties in the case for the reason that it was belated. In the present case, steps were already taken by the accused herein and filed the petition to get the report of the expert to prove his contention regarding the denial of the signature in the disputed cheque. Admittedly, reply notice has been issued by the accused to the statutory notice sent by the complainant. That document also can be produced either by the complainant or by the accused. Only on production of that reply notice, it can be verified whether the denial of signature was a new inventory made by the accused to protract the matter. The non-production of the reply notice by the complainant can also be taken as a circumstance in favour of the accused. The defence can raise all contentions to challenge the prosecution against them. Sufficient opportunity should also be given to prove the defence which cannot be denied, though belated if justice is denied of that score. In these circumstances, I find that the interest of justice CRRP 3433/2010 -4- warrants an opportunity to be granted to the revision petitioner to proceed with the petition. 6. In the result, a) this revision petition is allowed. b)The impugned order passed by the learned Magistrate in dismissing the petition is set aside and M.P.No.1115/2010 in C.C.No.3643/2007 is restored back to file. The revision petitioner/accused is directed to take necessary steps within one month from the date of receipt of a copy of this order. The court below to proceed with the proceedings in accordance with law. The Registry to send back the records to the lower court immediately. Sd/- M.C. HARI RANI JUDGE ks. TRUE COPY P.S. TO JUDGE