IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 Crl.Rev.Pet.No. 1614 of 2010() ------------------------------ STC.2356/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... REVN. PETITIONERS: REVISION PETITIONER(ACCUSED) ------------------------------------------------- CHETTINTAVIDA AHAMMED.A,S/O.ABDULLA, PUTHANPAURAYIL,EDACHERY PO,VDAKARA. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): (COMPLAINANT & STATE) ------------------------------------ 1. KALLIKANDY MOIDU,S/O.POCKU, "SHANA"THIRUVANGADI AMSOM, DESOM,KUTTIMAKKOOL, THALASSERY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.C.KHALID FOR R1 SRI.T.P.SAJID FOR R1 R2 BY P.P. SMT. REKHA C. NAYAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 8.3.2011, THE COURT ON 17.3.2011 PASSED THE FOLLOWING: CRL.M.A.NO.14937/10 IN CRL.R.P.NO.1614/2010 DISMISSED. 17.3.2011 SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No.1614 of 2010 ---------------------------------------- Dated the 17th Day of March , 2011 ORDER The challenge in this Crl.R.P. is against the order dated 10.11.2009 of the Judicial First class Magistrate court Thalassery in S.T.Case No.2356 of 2006. The grievance of the petitioner, who is the accused in a prosecution for the offence under section 138 of the N.I.Act, is that though the learned Magistrate allowed the petition, i.e. CMP No.736/2009, at his instance, whereby it was ordered to send the cheque in dispute for expert opinion regarding the age of the writing and also regarding the material alteration of causing erasure and correction, by the impugned order, the learned Magistrate closed that petition and ordered the refund of the expert fee deposited by the petitioner. 2. I have heard Sri T.M.Abdul Latiff, the learned counsel appearing for the revision petitioner and Sri C.Khalid, the learned counsel appearing for the Ist respondent and the learned Public Prosecutor. 3. The revision petitioner is the sole accused in STC CRL.R.P 1614/10 -:2:- No.2356/2006 pending before the Judicial First Class Magistrate court, Thalassery, which was instituted at the instance of the Ist respondent who is the complainant therein and the allegation in the said complaint is that the accused committed the offence punishable under section 138 of the NI Act connected with the cheque in question, i.e., cheque bearing No.435086 of South Malabar Gramin Bank, Edachery branch, and the cheque is dated 30.11.2005 for an amount of Rs.4,50,000/-. According to the petitioner, he did not issue such a cheque for such huge amount and according to him, the amount shown therein after material alteration through erasure and correction and no such amount is due to the complainant and therefore, the petitioner approached the learned Magistrate by filing CMP No.736/2009 for sending the disputed cheque for expert opinion and to get the report of the expert regarding the age of the writings contained in the cheque and also with respect to the alteration made therein. It is the further case of the revision petitioner that though the petition was allowed by the learned Magistrate, subsequently it was recalled without proper CRL.R.P 1614/10 -:3:- reason and without hearing the petitioner, in exceeding the jurisdiction of the learned Magistrate since the impugned order will amount to review which is impermissible in law. 4. The learned counsel for the petitioner vehemently submitted that the learned Magistrate has no jurisdiction to review his earlier order, allowing CMP 736/2009 by which the learned Magistrate ordered to send the cheque in question for expert opinion in terms of the prayer of the petitioner. It is also the case of the counsel that pursuant to the above order, the petitioner had deposited the requisite fee and expense for examination of the cheque in question by expert. The learned counsel further submitted that the learned Magistrate passed the impugned order dated 10.11.2009 without hearing the petitioner and simply based upon what mentioned by the office staff. Therefore, according to the learned counsel, if the cheque in question is not sent for expert opinion, the petitioner who is now facing trial will be seriously prejudiced. 5. On the other hand, according to Sri C Khalid, the learned counsel appearing for the Ist respondent that, because of the conduct of the petitioner himself, the CRL.R.P 1614/10 -:4:- learned Magistrate was constrained to close the petition since he failed to furnish specimen signature or inborn writings and therefore there is no illegality in the order. It is the further submission of the learned counsel that the present Crl.R.P as well as the petition for expert opinion etc are filed as part of dilatory tactics. The learned counsel pointed out that the case is pertained to the year 2006 and now 4 years are over and therefore, at this belated stage, it is not proper to send the disputed cheque for handwriting expert. 6. I have carefully considered the arguments advanced by the learned counsel for the revision petitioner as well as the respondent. I have also perused the impugned order. 7. It is pertinent to note that as directed by this Court, the Registry obtained remarks of the Presiding Officer of the said court with respect to the averments contained in the Crl.R.P. and accordingly, it is reported that the accused, through his counsel in the trial court filed a petition stating that the revision petitioner/accused knows only writing in capital letters and does not know CRL.R.P 1614/10 -:5:- writing in small letters and on the basis of the above petition the then presiding officer closed the petition as per the order impugned in this Crl.R.P. 8. As per the endorsement contained in the disputed cheque, the cheque is issued for an amount of Rs. 4,50,000/- which is substantially a good amount. The contention of the revision petitioner/accused is that that much liability is not due to the complainant and, according to him, after going through the cheque in question, the learned Magistrate himself was satisfied in his earlier order to send the cheque in question for expert opinion. 9. Therefore, the question now arises is whether the learned Magistrate has got jurisdiction to review his earlier order and allowing the petition of the petitioner to send the cheque in question for expert opinion. Along with the Crl.R.P. the petitioner has produced the docket sheet and order dated 10.11.2009 pertained to the above S.T. Case which reads as: “......10.11.2009: Office submitted that accused is not willing to give specimen signature or inborn writings. Petition closed. Return the expert fee. Evidence closed. posted to 30.11.2009.” CRL.R.P 1614/10 -:6:- In the remarks obtained from the said court, it appears that the counsel for the petitioner therein had preferred a petition stating that he knows only writing in capital letters and does not know writing in small letters. However, in the above quoted order of the learned Magistrate, there is no reference as to whether any such petition was filed and as to whether the order was passed on the basis of such petition. Besides the above remarks that obtained by this Court from the Presiding Officer of the court, which is only a report on administrative side, there is no order of the judicial side that the petition , i.e. CMP No.736/2009 was dismissed for the reasons stated in the report obtained by this court which indicated above. So there is no material to show that the order dated 10.11.2009 is passed after hearing the revision petitioner who is the accused and it is manifest that the order was issued simply on the basis of the submission allegedly made from the office of the trial court. According to me, even if such submission is made from the Registry of the trial court, the learned Magistrate ought to have posted the matter in the open court and hear the petitioner regarding the veracity of the office submission and the stand of the revision petitioner and thereafter to pass a speaking order. As the amount involved in the cheque is a substantial CRL.R.P 1614/10 -:7:- good amount and as the court has already allowed the petition preferred by the revision petitioner for sending the cheque in question for expert opinion, the failure on the part of the court below in resorting the above procedure, no doubt, prejudiced the interest of the accused. In the result, this Crl.R.P, disposed of setting aside the order dated 10.11.2009 of the learned Magistrate in CMP No.736/2009 and remitting the matter back to the learned Magistrate for passing appropriate orders in CMP No.736/2009 after hearing the petitioner as well as the contesting respondent . Considering the submission of the learned counsel for the contesting respondent that the petitioner is protracting the matter, the learned Magistrate is directed to expedite the above proceedings and to dispose of S.T.No.2356/2006 pending in that court , as expeditiously as possible. V.K. MOHANAN JUDGE kvm/- CRL.R.P 1614/10 -:8:- ........