IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 Crl.MC.No. 760 of 2005() ------------------------ CMP.393/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA PETITIONER: ACCUSED: ----------------------- DEVADASAN, S/O. VELUPILLAI, KONATHU VEEDU, MANAMPOOR, MANAMPOOR VILLAGE, VARKALA. BY ADV. SRI.R.ANILKUMAR SRI.P.BANI SRI.P.VIJAYAKUMAR RESPONDENTS: COMPLAINANT: --------------------------- 1. N.THULASEEDHARAN, S/O. NARAYANAN, KUNNATHU VEEDU, MANAMPOOR, MANAMPOOR VILLAGE, VARKALA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. REJI JOSEPH SRI.VAKKOM N.VIJAYAN FOR R1 SMT.V.RENJU FOR R1 SRI.P.ANIYAN FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY, PASSED THE FOLLOWING: APPENDIX PETITIONER'S ANNEXURES: ANNEXURE-A THE COPY OF THE CERTIFIED COPY IN COMPLAINT IN C.C. NO. 496/03 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, VARKALA DATED 5.4.2001. ANNEXURE-B THE CERTIFIED COPY IN ORDER CMP NO. 393/2005 DATED 14.2.2005. // TRUE COPY // P.S. TO JUDGE. Knc/- P.S. GOPINATHAN, J. = = = = = = = = = = = CRL. M.C. 760 OF 2005 = = = = = = = = = = = = = DATED THIS, THE 13TH DAY OF DECEMBER, 2011. O R D E R This is a petition preferred under Section 482 of the Code of Criminal Procedure assailing the order dated 14.2.2005 in C.M.P. No. 393/2005 in C.C. 496/2003 on the file of the Judicial Magistrate of the First Class, Varkala. Petitioner is the accused. The first respondent herein prosecuted the petitioner alleging offence under Section 138 of the Negotiable Instruments Act. The evidence for the prosecution was over and the case was posted for recording the statement of the accused (petitioner herein). While so, he preferred C.M.P. 393/2005 seeking an order to forward Exts.D1 and D2 to the handwriting expert for comparing the handwritings in those documents with that of the first respondent. The learned magistrate, by the impugned order, dismissed the petition. Now this petition. 2. I have heard Advocate Sri. R. Anilkumar and Smt. V. Renju, learned counsel appearing for the first respondent. Perused the order impugned as well as the copies of Exts.D1 and D2. I have also gone through the averments in the complaint. Crl. M.C. 760/2005 2 3. As per the averments in the complaint, in discharge of a liability amounting to Rs. 2,50,000/-, two cheques dated 10.10.2000 drawn on Thiruvananthapuram Jilla Service Sahakarana Bank, Attingal Branch for Rs. 1,50,000/- and Rs. 1,00,000/- were issued and that when sent for collection, the cheques were returned dishonoured. Notice demanding discharge was issued. According to the first respondent, the notice was returned by the petitioner and the liability was not discharged. 4. The plea of the petitioner is one of discharge. It is in support of that plea Exts.D1 and D2 were produced. Exts. D1 and D2 were confronted to the first respondent when he was examined stating that the handwritings are that of the first respondent. He denied the handwritings. Ext.D1 is some calculation alleged to be made on the cover of a wedding invitation. Ext.D2 is the page of a diary for the year 1998. In the diary, the so-called writings are made on the page relating to 13th October. According to the petitioner, these writings were made by the first respondent while acknowledging the amount due from the petitioner to the first respondent. Ext.D2 would show that the so-called discharge was on 31.10.1999, 11.11.1999 and 15.12.1999. Admittedly, those payments are before the Crl. M.C. 760/2005 3 issuance of the cheques in dispute. Adding to the above, the amount recorded therein is much lesser than the amount covered by the cheques in dispute. As regards the payments alleged to have been recorded on Ext.D1, there is no mention regarding the year in which the so-called payments were made. Even if the entire payment is taken into account, it would not even cover half of the amount covered by any one of the cheques. Learned counsel for the petitioner submitted that the payments noted in Ext.D1 were made during the year 1998. That also is much before the issuance of the cheque. Therefore, even if Exts. D1 and D2 are in the handwriting of the first respondent, the petitioner could not escape from the prosecution for offence under Section 138 of the Negotiable Instruments Act basing on a cheque drawn long after Exts. D1 and D2. Exts. D1 and D2 would not help the petitioner to establish the so-called discharge. Exts. D1 and D2 are insignificant. In the above circumstances, I find no error committed by the learned magistrate in the impugned order so as to be rectified in exercise of the inherent powers vested on this Court under Section 482 of the Code of Criminal Procedure. The learned magistrate also had taken note that these documents were sought to be sent to the handwriting expert at a highly Crl. M.C. 760/2005 4 belated stage. That reasoning also is appropriate when the nature of the defence is taken into account. I find no merit in this petition. In the result, this petition is dismissed. The learned magistrate is directed to dispose of the case, untrammelled by the observations in the impugned order or in this order, within two months from the date of receipt of a copy of this order. P.S. GOPINATHAN, (JUDGE) knc/-