IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 Crl.Rev.Pet.No. 2650 of 2008() ------------------------------ AGAINST THE ORDER DATED 09/07/2008 IN CMP 3230/2008 IN CC.151/2007 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------- DR.DOMINIC THOMAS, NELLUVELIL, COLLEGE JUNCTION, ERATTUPETTA. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENTS/PLAINTIFF: ------------------------------------------------- 1. JAYANKUTTY.T, S/O.RAMAKRISHNAN, THEKKUMPURATH HOUSE, PATHAPUZHA P.O. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SHAJI THOMAS PORKKATTIL FOR R1 SRI.BINU PAUL FOR R1 SRI.T.V.VINU FOR R1 BY PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL.8018/2008 IN CRL.R.P.NO.2650/2008 28.10.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 2650 OF 2008 =========================== Dated this the 28th day of October,2008 ORDER This revision petition is filed under section 397 read with section 401 of Code of Criminal Procedure challenging the order passed by Judicial First Class Magistrate, Erattupetta dismissing CMP 3230/2008 an application filed by the petitioner at the stage of defence evidence to sent Ext.P1 cheque to Forensic Science Laboratory for comparing handwriting of the date in dishonoured cheque with the admitted handwriting of the petitioner. Learned Magistrate dismissed the application on the ground that petitioner admitted his signature and other writings in the cheque and only writing showing the date of the cheque is disputed and if petition is allowed it will protract the case and petitioner can prove his case by other means and petition was dismissed. 2. Learned counsel appearing for petitioner CRRP 2650/2008 2 relying on the decision of the Apex Court in T.Nagappa v. Y.R.Muralidhar (2008(3) Supreme To-day 196) argued that it is not for the court to decide what evidence is to be let in by the accused and accused is entitled to prove his case and hence the order is not sustainable. Learned counsel appearing for petitioner relying on the decision in Baby Thomas v. Paul (2007(4) KLT 738 and in Moideen v. Johny (2007(2) KLT SN 15) argued that even if it is proved that the date is not to put by the petitioner, it will not affect the validity of the cheque and it will not amount to a material alteration as there is implied authority to fill up the date and when it is admitted that all other writing in the dishonoured cheque made by the petitioner there is no need for the report of an expert. 3. Case of the petitioner from the very beginning was that the dishonoured cheque was issued by him for Rs.75,000/- though the amount CRRP 2650/2008 3 borrowed was only Rs.50,000/-. It was the case that when the cheque was issued date was not shown. According to petitioner, it was issued only as security to enable the petitioner to pay the amount borrowed before its presentation. Case of first respondent on the other hand was that including the date everything seen in Ext.P1 was written by the petitioner and cheque was issued towards repayment of Rs.75,000/-obtained by petitioner earlier. In such circumstance, question whether the dishonoured cheque was issued without a date or with date assumes importance and is a relevant fact to appreciate the evidence of first respondent as well as the acceptability of the defence case. In such circumstance, learned Magistrate was not justified in denying an opportunity to the petitioner to prove his case. 4. Apex Court considered this aspect and held in Nagappa's case (supra). 8. What should be the nature of evidence is not a matter CRRP 2650/2008 4 which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefore, however, must be taken within a limited time. CRRP 2650/2008 5 There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.” In such circumstance, the order is set aside. C.M.P.3230/2008 in C.C.151/2007 stands allowed. Learned Magistrate is directed to forward the cheque along with the admitted writings of petitioner to the Forensic Science Laboratory as sought for by the petitioner at his expenses. Criminal Revision Petition is disposed of. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006