IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 Crl.MC.No. 2316 of 2007() ------------------------- CRRP.9/2007 of SESSIONS COURT, KALPETTA CMP.408/2007 of JUDICIAL MAGISTRATE OF FIRST CLASS, KALPETTA. .................... PETITIONER: PETITIONER/ACCUSED ------------------------------ P.A.YOOSAF, PALLIYATH HOUSE, KOTTAKUNNU, S.BATHERY POST, WAYANAD. BY ADV. SRI.GRACIOUS KURIAKOSE SMT.CELINE JOSEPH RESPONDENTS: RESPONDENTS/COMPLAINANT ------------------------------------ 1. KHADEEJA, D/O UNNIMOYIN, KALATHINKAL HOUSE, MUTTIL POST, VYTHIRI TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV. SRI.P.K.ABOOBACKER(EDATHALA) BY PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. M.C. No. 2316 of 2007 * * * * * * * * * * * * * * * * * * Dated: 24-03-2008 ORDER Revision Petitioner who is the sole accused in S.T. Case No. 409 of 2006 on the file of the J.F.C.M., Kalpetta challenges the order dated 25-04-2007 passed by the said Magistrate refusing to send the cheque in question to the handwriting expert for ascertaining the age of the handwriting as well as signature in the cheque in question in a prosecution under Sec. 138 of the Negotiable Instruments Act, 1881. The cheque amount is Rs. 2,00,000/-. The order of the Magistrate was confirmed in Revision by the Sessions Court, Kalpetta. 2. The learned counsel appearing for the revision petitioner made the following submissions before me in support of the challenges against the concurrent orders:- It has recently been held by the Apex Court in the decision reported in 2007 (1) KLJ 892 (SC) that the accused has a right to rebut the statutory presumptions by seeking permission Crl. M.C. No. 2316 of 2007 -:2:- to send the cheque in question to the handwriting expert to prove the genuineness or otherwise of the signature and other writings . It is true that the accused has admitted the signature in the cheque in question. But this Court has held in 2007 (1) KLT 525 that the admission of signature does not amount to admission of execution of the cheque and that it is for the complainant to prove that the cheque in question was duly executed by the accused in which case alone is the complainant entitled to press into service the statutory presumptions under Secs. 118 and 139 of the Negotiable Instruments Act. Since the petition was filed under Section 293 Cr.P.C. it must be presumed that the request was to send the cheque to the Forensic Science Laboratory and not to any private expert. The case of the accused is that the cheque in question was obtained by the husband of the complainant at a time when the accused and the complainant's husband were on good terms. After they fell out, the cheque was being misutilised. In any view of the matter, the courts below ought to have seen that the delay on the part of the petitioner in filing the application could be compensated by costs. 3. I am afraid that I cannot agree with the above Crl. M.C. No. 2316 of 2007 -:3:- submissions. The fact that the cheque in question contains the signature of the accused is an admitted fact. The petitioner/accused had no consistent case during the progression of the case. The petitioner admittedly did not send any reply to the statutory notice and his had a contention is that he did not receive the notice. When the complainant was examined as P.W.1 the specific suggestion put to him during cross- examination was that Ext. P1 cheque was issued to the husband of the complainant and that there was no transaction between the petitioner and the complainant. But at the time of filing the present application namely C.M.P. No. 408 of 2007 his case was that the husband of the complainant somehow or other managed to get the custody of the cheque leaf in question and the custody of the cheque was obtained by the complainant who had misutilised the same. 4. When handing over of a signed blank cheque is admitted, the statutory presumptions under Secs. 118(a) and 139 of the Negotiable Instruments Act go to the rescue of the complainant/payee and it is for the accused to rebut the said presumptions. (See Bhaskaran v. Balan - 1999 (3) KLT 440 (SC). The said verdict of the Apex Court has not so far Crl. M.C. No. 2316 of 2007 -:4:- been dissented from or overruled by a larger Bench. Both the courts below have considered the rival contentions to hold that the request for sending the cheque for ascertaining the age of the writings and the signature therein was misconceived. Circumstances are not rare when after forwarding the cheques to the handwriting expert an adverse report is sent to the court such reports are attempted to be got over by saying that the report of a handwriting expert is not conclusive. I, therefore, do not find any good reason to interfere with the discretion exercised by the courts below. I am fortified in my view by the decisions in Francis v. Pradeep - 2004 (2) KLT 1080 and Baby Thomas v. T.T. Paul and Another - 2007 (3) KHC 732. The result of the foregoing discussion is that this Crl.M.C. is without any merit and is accordingly dismissed. V. RAMKUMAR, JUDGE ani/