IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 Crl.MC.No. 18 of 2011() ----------------------- AGAINST THE ORDERIN CMP 4983/2010 IN CC.821/2007 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... PETITIONER(S): ACCUSED ---------------------- K.C.SUDHEENDRAN, SUB ENGINEER, K.S.E.B. MAJOR SECTION OFFICE, KOLLAKADAVU, MAVELIKKARA P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. GOPAKUMAR, S/O.GOPI, CHAITHRA NIKUNJAM, PUNNAPRA P.O., ALAPPUZHA-688004. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J * * * * * * * * * * * * * Crl.M.C.No.18 of 2011 ---------------------------------------- Dated this the 19th day of January 2011 O R D E R Petitioner is accused in C.C.No.821/2007 of the J.F.M.C, Ambalappuzha facing trial for offence under Section 138 of the Negotiable Instruments Act (for short “the Act”). According to the 1st respondent, petitioner owed Rs.1,50,000/- to him and for discharge of that liability, issued Ext.P1 cheque, which was dishonoured for insufficiency of funds. 2. Petitioner denied the allegation and claimed that he had given the cheque as a security to the SNDP branch, Neerkunnam when he availed a loan from that institution. That cheque was misused by the office bearers of the SNDP branch. 3. When the 1st respondent was examined as PW1, he was cross-examined with respect to the signature and hand writing in Ext.P1. In cross-examination he stated that petitioner signed the cheque and gave it to him. Later, he stated that petitioner wrote the cheque. Thereon, petitioner filed C.M.P.No.4983/2010 to send the cheque to the expert for opinion. That application was dismissed by the learned Crl.M.C.No. 18 of 2011 2 Magistrate vide order dated 08/02/2010 which is challenged in this proceedings. The learned counsel, placing reliance on the decision in Nagappa v. Muralidhar [2008(3) KLT 158 (SC)] and in particular paragraphs 7 and 8 contends that valuable right of petitioner to defend the case has been denied by the learned Magistrate vide the impugned order. 4. I have been taken through the deposition of the 1st respondent as PW1. Learned Magistrate observed in the impugned order that a reading of the deposition would show that what 1st respondent stated in cross-examination is that petitioner signed the cheque in his presence. Learned counsel would, of course, contend that a reading of deposition of 1st respondent would show that according to him the cheque was written and signed by petitioner in his presence. But, on going through the deposition, I do not find any such positive statement by the 1st respondent that petitioner wrote the cheque in his presence. It is in that view that learned Magistrate has disallowed prayer to send the cheque for examination. 5. True, in the decision cited, the Supreme Court stated that there must be a fair trial and that the right of the accused Crl.M.C.No. 18 of 2011 3 for that cannot be denied. But any decision has to be understood on the facts and circumstances of the case. This Court in Baby Thomas v. Paul [2007(4) KLT 738] has held that any and every request to send the cheque to the expert is not required to be entertained. Having regard to the circumstances, I find no reason to interfere with the impugned order at this stage. But, I make it clear that this order will not prevent petitioner from raising the question in an appeal that may be preferred against judgment of learned Magistrate. 6. With the above observation, this petition is closed. (THOMAS P.JOSEPH, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No. 18 of 2011 4 Crl.M.C.No. 18 of 2011 5 THOMAS.P.JOSEPH,J. Crl.M.C.No. of 200 ORDER 19/01/2011