IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 Crl.MC.No. 2329 of 2005() ------------------------- AGAINST THE ORDER DATED 26/07/2005 IN CMP. 2944 /2005 IN CC.800/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... PETITIONER: COMPLAINANT/PETITIONER. ----------------------------------- SULAIKHA, W/O.BABU KUNHALAN KUTTY, KOTTATHARA, MAYINKKANAKATH HOUSE, PALLIPPADY, B.P.ANGADI P.O. TIRUR. BY ADV. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN SMT.R.MEERA RESPONDENTS: ACCUSED. --------------------- MUHAMMED BASHEER, S/O.IBRAHIMKUTTY @ BAPPU, KOTTATHARA MAYINKKANAKATH HOUSE, PALLIPPADY, B.P.ANGADI P.O. TIRUR. BY ADV. SRI.K.B.GANGESH SRI.ANIL GEORGE PP SRI.C.M. KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.M.C.2329/2005 -------------------- Dated this the 4th day of September, 2008 ORDER The complainant in C.C.No.800/2000 on the files of the Judicial First Class Magistrate Court, Tirur, is the petitioner herein. The calender case arises out of a complaint alleging that the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act. Apparently, according to the complainant, accused the brother, had borrowed an amount of Rs.5,00,000/- from the complainant sister. On demand the amount was not paid. Therefore, the complaint was filed alleging that the brother had committed an offence punishable under Section 138 of the Negotiable Instruments Act. 2. It seems that the accused had even earlier at the stage of lawyer notice, categorically denied the signature in the cheque. He continued to take up that defence before the Court also. In fact, the accused had taken upon the burden of disproving the signature in the cheque and Crl.M.C.2329/2005 2 sought for sending the disputed cheque to a handwriting expert. It seems that the matter was originally referred to the F.S.L, Thiruvananthapuram. But they had given an intimation back to the Court stating that the matter might require time for their opinion. In the circumstances, the accused sought for sending the disputed cheque to one Khan Sahib, who, according to the accused, was a handwriting expert. Expert sent Ext.D1 opinion and he was examined as CW1. In the cross examination, the expert opined that he essentially was a finger print expert and was not a handwriting expert as such, though he had subsequently acquired membership of British Institute of Graphology and membership of National Association of document examination of settle, U.S.A. It seems that later the complainant produced certified copies of an expert report filed in another proceedings before the Judicial First Class Magistrate Court-III, Kozhikode, which revealed that the disputed document in the said case had been forwarded to a firm in which the same expert Khan Shahib was the Managing Director. But he in turn had forwarded it to one Sukumaran Chettiar for the Crl.M.C.2329/2005 3 latter's expert opinion. Apparently, the complainant took the stand to buttress his contention that Khan Shahib was not a handwriting expert. Therefore, whenever there was a reference to him for an expert opinion in relation to the handwriting in the disputed documents, he had forwarded it to another person who was an acknowledged expert. In the result, the complainant filed an application for sending the disputed document to another handwriting expert for opinion. This was objected to by the accused who inter alia pointed out that the earlier reference to Khan Shahib was practically on consent. The Court below rejected the application. It is against the same, the complainant has come up with the application under Section 482 of Cr.P.C. 3. I heard learned counsel for the petitioner Mr.K.Ramachandran and learned counsel for the accused Mr.Gangesh. Prima facie, the attempt made by the complainant only seems to be a bonafide attempt to bring the best evidence before the Court. In so far as the accused is concerned, he had consistently denied the Crl.M.C.2329/2005 4 signature in the disputed cheque and had denied the transaction as well. Therefore, the burden on the complainant becomes more onerous and he has to necessarily prove that the signature in the disputed cheque is that of the accused. Any plea made by the complainant at this juncture would obviously indicate that the complainant feels that there is a burden on him, notwithstanding the statutory presumption under Section 139 of the Act on the complainant to prove that the signature in the disputed document is that of the accused. If for that purpose the complainant seeks a reference of the document to another accredited expert, there is no reason why the accused should feel prejudiced by any such motion on the part of the complainant. 4. Even otherwise I feel, from a perusal of the order of the Court below and on the submissions made by Mr.Ramachandran and Mr.Gangesh that Mr.Khan Shahib was apparently not a handwriting expert but a fingerprint expert and therefore, it would only be appropriate that the disputed cheque be sent to an Crl.M.C.2329/2005 5 accredited handwriting expert. To avoid further controversy in this regard, it would be better the cheque be sent to the Forensic Science Laboratory and there opinion be obtained notwithstanding the time factor involved. 5. For all these reasons, Crl.M.C is allowed in part. Annexure-I order is set aside. Court below is directed to send the disputed cheque to the Forensic Science Laboratary, Thiruvananthapuram, at the instance of the complainant for their opinion as regards the signature and the handwriting in cheque as such. Mr.Gangesh submits that there is unnecessary protraction of the proceedings which in turn causes prejudice to the accused to an extent. I find substance in this finding. The Court below shall exempt personal appearance of the accused, unless it becomes absolutely necessary. V.GIRI, Judge mrcs