IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 Crl.MC.No. 2792 of 2008() ------------------------- AGAINST THE ORDER DATED 11/04/2008 IN CMP 312/08 IN ST.915/2008 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOZHIKODE .................... PETITIONER: ACCUSED ------------------- BALAJI.B, S/O. APPU, AGED 54, BAPPAYIL HOUSE, P.O. ERANHIKKAL, CALICUT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: ------------- 1. KIRAN BABU, S/O.APPU, AGED 45, BAPPAYIL HOUSE, P.O ERANHIKKAL, CALICUT. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB. ADV. SRI.M. KRISHNAKUMAR (R1) THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No.2792 of 2008 ------------------------------------------------- Dated this the 12th day of August, 2008 ORDER The petitioner is the accused in a prosecution under Sec.138 of the Negotiable Instruments Act. The complainant – his brother, is the 1st respondent herein. The matter has reached the stage of trial. At the stage of defence evidence, the petitioner wanted a document produced by the complainant to be sent to the expert. That document was marked as Ext.P7. That is a copy of the mortgage agreement. The complainant has a case that the cheque was issued for the due discharge of a legally enforcible debt/liability. A loan was availed from the complainant by the accused – his brother. As security for the loan availed, a mortgage agreement was executed. The original of the mortgage agreement was allegedly kept in the possession of the complainant and a copy Crl.M.C. No.2792 of 2008 -: 2 :- thereof was retained by the accused. Later, there was an agreement for discharge of the liability and the accused had allegedly issued a cheque for Rs.6 lakhs to the complainant. The copy marked as Ext.P7 was allegedly retained by the complainant and the original of Ext.P7 was allegedly returned. It is that cheque which was dishonoured and is the subject matter of this dispute. The learned counsel for the petitioner points out that the plea of returning the original mortgage agreement is not specifically raised in the complaint. 2. The petitioner's application for sending the copy of the mortgage agreement to the expert for opinion was rejected by the learned Magistrate by the impugned order. The petitioner claims to be aggrieved by the said rejection. He has hence come to this Court with a prayer that powers under Sec.482 Cr.P.C. may be invoked. 3. The law frowns upon attempts to challenge interlocutory orders during the pendency of the proceedings in a criminal trial. This policy of law is clearly evident from the embargo against the revisional challenge of interlocutory orders in Sec.397(2) Cr.P.C. Ordinarily and normally, a party to the proceedings aggrieved by the interlocutory orders shall have to wait till the proceedings are disposed of finally to challenge such Crl.M.C. No.2792 of 2008 -: 3 :- interlocutory orders passed in the course of the proceedings. He cannot be permitted to challenge such orders during the pendency of the proceedings. The revisional challenge is not maintainable and that explains why the petitioner has labelled this petition as one under Sec.482 Cr.P.C. Where exceptional reasons exist, notwithstanding the bar under Sec.397(2) Cr.P.C., this Court would be justified in considering the challenge under Sec.482 Cr.P.C. I need only mention that, at the moment and with the available inputs, I am not persuaded to interfere with the impugned order by invoking the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. I take note of the fact that what is sought to be sent to the expert is not the original document and is only a photocopy of the agreement attested by a Notary. I am, in these circumstances, satisfied that the petitioner must be relegated to mount challenge, if any, against the impugned order along with the final order to be passed in the prosecution by the learned Magistrate and it is not necessary for this Court at this stage to invoke the extraordinary inherent jurisdiction. 5. Advocate Mr.K. Krishnakumar has entered appearance for the 1st respondent. 4. In the result, this Crl.M.C. is dismissed. But I may Crl.M.C. No.2792 of 2008 -: 4 :- hasten to observe that I have not intended to express any authentic opinion on the acceptability of the impugned order. I choose to take the view that the same cannot be challenged in proceedings under Sec.482 Cr.P.C. now and the petitioner's option to raise all relevant grounds against the impugned order, if necessary, along with the challenge against the final order in the case shall remain unfettered by the dismissal of this petition. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No.2792 of 2008 -: 5 :-