IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 4TH DAY OF MARCH 2010/13TH PHALGUNA 1931 Crl.MC.No. 664 of 2007 ( ) -------------------------- CC.438/2005 of J.M.F.C.-II, KASARAGOD PETITIONER(S): ---------------- GOPALAKRISHNA ACHARYA,S/O.RAMAYYA ACHARYA,GOLD APPRAISER, MAJIBAIL SERVICE CO-OPERATIVE BANK, UPPALA, KASARAGODE. BY ADVS.SRI.K.I.MAYANKUTTY MATHER SMT.S.LAKSHMY COMPLAINANT(S): -------------------- 1. T.SHANKARANARAYANA RAO S/O.P.RAMAKRISHNA RAO,SHIRIYA, SHIRIYA P.O. VIA KUMBLA,KASARAGODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R.1 BY SMT.R.PADMAKUMARI R2 BY PUBLIC PROSECUTORSRI.B.JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-03-2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA J. ------------------------- Crl.M.C No.664 of 2007 -------------------------- Dated this the 4th day of March, 2010 J U D G M E N T Petition filed by the petitioner to quash Annexure-B order. 2. Petitioner is alleged to have committed offence under Section 138 of Negotiable Instruments Act in respect of a cheque, Ext.P1. He filed a petition before the Magistrate Court for sending Ext.P1 cheque and Ext.D3 document, which is in his handwriting, to the expert for comparison. According to petitioner, Ext.P1 cheque is not in his handwriting. The complainant, first respondent herein alleged that it was signed and written in his presence. 3. Learned Magistrate found that there is no evidence to establish that handwriting in Ext.D3 document (by mistake, document was referred to as Ext.D1 in the impugned order as submitted by both sides) is that of the accused. Since it is not proved that Ext.D3 document contains handwriting of the accused, Ext.P1 cheque cannot be sent for comparison along with Ext.D3 was the argument and trial court found that arguments cannot be Crl.M.C No.664 of 2007 2 rejected. It is further held that if the petition is allowed, t will help only to drag the case unnecessarily. 4. According to petitioner, the cheque was issued not to the complainant but to one Richard D' souza in a blank form. It was misused by the complainant. The petitioner has definite case that Ext.P1 cheque is not in his handwriting whereas complainant contended that it was written by the accused. The allegation made by the complainant can be established to be false only if the cheque is sent to the expert for examination to prove that it does not contain handwriting of the accused and hence, petitioner seeks to send it for expert opinion. 5. Learned counsel for first respondent argued that there is no proof for the fact that Ext.D3 document contains the handwriting of the accused. When accused was examined as DW1, this document was not put to him and it was not brought out in evidence that Ext.D3 contains his handwriting. Hence it will be futile to obtain expert's opinion by comparing handwriting in Ext.D3 with Ext.P1 cheque. Therefore, the court has rightly dismissed the petition, it is Crl.M.C No.664 of 2007 3 argued. 6. On hearing both sides, I find that while the complainant set up a case that Ext.P1 cheque was in the handwriting of accused, it is denied by accused. Learned counsel for petitioner pointed out that DW3 is the Bank Manager and a gold loan application, which is marked as Ext.D3. was marked through him. According to petitioner, Ext.D3 contains his handwriting and he is also working under DW3, as per his evidence. 7. Even if there is any doubt regarding handwriting in Ext.D3, whether it belongs to the accused or not, the court can get specimen handwriting of petitioner for comparison with Ext.P1, it is submitted. Learned counsel for the 1st respondent also submitted that first respondent has no objection if specimen handwriting is sent for comparison. 8. In the above circumstances, I find that petition ought to have been allowed and along with Ext.D3 document, specimen handwriting of the petitioner may also be procured and sent to the expert for comparison. The Crl.M.C No.664 of 2007 4 petition filed by petitioner for expert opinion has to be allowed. In the result, the following order is passed: (1) The order under challenge is set aside. (2) C.M.P. No.2100/2006 is allowed. (3) It is hereby directed that Ext.P1 and Ext.D3 along with specimen handwriting of the petitioner shall be sent for comparison by handwriting expert. (4) Learned Magistrate shall procure specimen handwriting from petitioner and pursue further steps in the matter. Petition is allowed. Sd/- K.HEMA, JUDGE Sou. /True copy/ P.A to Judge