IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 Crl.Rev.Pet.No. 1652 of 2009() ------------------------------ REVN. PETITIONER: PETITIONER/ACCUSED --------------------------------------- NATURE LIFE HOSPTIAL AND REMEDIES, CHAMPAKKARA, NEAR TRIPUNITHURA, ERNAKULAM DISTRICT, REP. BY ITS PROPRIETOR, JACOB VADAKKENCHERRY @ V.P.JACOB, AGED 44 YEARS. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENTS: STATE AND COMPLAINANT ------------------------------------ 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JOHNY EDAYANAL @ E.P.JOHN, AGED 48 YEARS, EDAYANAL HOUSE, PAZHAMTHOTTAM, KUMARAPURAM VIA., ERNAKULAM DISTRICT. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN SRI.PAUL K.VARGHESE FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.1652 of 2009 ---------------------------------------- Dated this the 30th day of September, 2009 ORDER The revision petitioner is the accused in S.T.No.1161 of 2006 on the file of the Judicial Magistrate of the First Class, Kolanchery. The second respondent herein prosecuted the revision petitioner alleging offence under section 138 of the Negotiable Instruments Act with a plea that the revision petitioner borrowed a sum of Rs.80,000/- from the second respondent and in discharge of that liability, a cheque bearing No.605278 dated 31/3/2006, which was marked in evidence as Ext.P1 for the said amount drawn on Canara Bank, Ernakulam branch was issued and that when Ext.P1 was presented for collection it was returned bounced for insufficiency of funds. Despite the notice demanding discharge of the liability, no payment was made. 2. The learned Magistrate took cognizance and issued process to the revision petitioner responding to which he entered appearance. When the particulars of the offence were read over and explained to the revision petitioner after furnishing a copy of the complaint, he pleaded not guilty to the charge. Hence, he Crl.R.P.No.1652 of 2009 2 was sent for trial. After closing evidence for the prosecution, the revision petitioner was questioned under section 313 of the Code of the Criminal Procedure. He filed a statement alleging that the second respondent was the Manager of Natural Life Hospital, remedies run by the revision petitioner. He was working in a fiduciary capacity, and that during that tenure whenever revision petitioner was on tour inside and outside the country, the second respondent was managing the affairs of the above said establishment and that misusing the opportunity the second respondent might have obtained blank cheque from the cheque book of the revision petitioner and forged his signature and presented for collection and that the revision petitioner had not issued Ext.P1 cheque and that he had not signed the cheque. There after the revision petitioner filed a petition as Crl.M.P.No.5402 of 2009 seeking an order to forward Ext.P1 cheque to Forensic Science Laboratory, Thiruvananthapuram for examining the veracity of the signature. By the order impugned, the learned Magistrate dismissed the petition. 3. Assailing the legality, correctness and propriety of the above said order, this revision petition was filed. Crl.R.P.No.1652 of 2009 3 Paragraph 4 of the order impugned reads as follows: “On going through the signatures in the vakalath as well as in the cheque, it is seen that both these signature are put by the same person. In his cross- examination the respondent has categorically admitted the signature of the petitioner in the cheque and there is no dispute with regard to the handwriting in the cheque. The respondent has no case that the petitioner has written the cheque and entrusted with the respondent. According to the respondent, the signature alone has been put in his presence and he is naturally unaware of the writings in the cheque. Since there is no variation in the signature, the present petition is believed to be filed only to prolong the disposal of the case. Hence the present petition is devoid of merit.” From the order impugned quoted above, it is revealed that the learned Magistrate had verified the signatures in the vakalath as well as the signature in Ext.P1 and it appeared to her that the signatures are made by the same person. It has also observed that in cross-examination the second respondent had categorically asserted the signature of the revision petitioner. The revision petitioner had applied for expert opinion at the Crl.R.P.No.1652 of 2009 4 proper time. Without allowing the petitioner to adduce evidence, the learned magistrate had taken a decision. Such a procedure is highly improper and at no stretch of imagination I can uphold. What should have been done at the final stage was done by the magistrate amidst the trial, that too without affording an opportunity to the revision petitioner/accused despite the request with prima facie believable reasons. While the learned magistrate observing that PW.1 had asserted the disputed signature as that of the revision petitioner, the learned magistrate had failed to note that the revision petitioner, though not on oath had specifically denied the signature and had explained the possibility for getting the cheque at the hands of the respondent and forging it. The request of the revision petitioner was declined for reasons which cannot be justified. An identical issue had been to the consideration of the Apex Court in (Kalyani Baskar Vs. M.S.Sampoornam 2007(2) SCC 258). At paragraph 12 it is held : “Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers Crl.R.P.No.1652 of 2009 5 under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. “Fair trial” includes fair and proper opportunities allowed by law to prove her innocence. Crl.R.P.No.1652 of 2009 6 Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them.” The above ratio squarely applies to the case on hand. Applying the ratio of the above decision to the case on hand, I find that the lower court had gone wrong in rejecting prayer after she comparing the signature contained in Ext.P1 with that in the vakalath. The lower court should have allowed the petition and given the revision petitioner an opportunity to bring expert evidence on record. I find that the order impugned is not sustainable and is liable to be set aside. 4. In the result, the revision petition is allowed. While setting aside the order impugned the petition, C.M.P.5402/2009 before the trial court would stand allowed. The learned counsel for the revision petitioner recommended the name of the Sri.Khan Sahib, No.S-1, Block No.9, Chinthavalap flats, Ram Mohan Road, Puthiyara, Calicut-4. Phone No.0495-2720100 as expert. Crl.R.P.No.1652 of 2009 7 The learned counsel for the second respondent has no objection. Hence, Ext.P1 cheque shall be sent to the above expert. The revision petitioner shall deposit necessary amount towards the expenditure within 10 days of the receipt of this order. In the event of failure to deposit the amount in the stipulated time, the above petition before the trial court would stand dismissed. In the event of deposit of the amount, the cheque shall be sent to the said expert and on receipt of the expert opinion; the case shall be disposed as per law. P.S.GOPINATHAN, JUDGE Skj.