IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 Crl.MC.No. 2462 of 2008() ------------------------- AGAINST THE ORDER DATED 14/05/2008 IN CMP 8/2008 IN CC.982/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERUMBAVOOR .................... PETITIONER: ------------ P.U.ABDUL KAREEM, AGED 42 YEARS, S/O.UMMER, THENNOOR HOUSE, PALLIPRAM KARA, MARAMBILLY VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.G.RAJAGOPAL SRI.THOMAS M.JACOB RESPONDENTS: ------------- 1. C.M.MUHAMMED, AGED 29 YEARS, S/O.C.A.MARAKKAR, CHERUMOODAN HOUSE, PALLIPRAM KARA, MARAMBILLY VILLAGE, KUNNATHUNADU TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2462 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2008 O R D E R The petitioner faces indictment in a prosecution under Section 138 of the N.I. Act. It is the defence of the petitioner that the cheque is not signed or executed by him. On the very same cheque parallelly civil suit has also been filed before the same Court. Sitting as a civil court, the Presiding Officer had already directed to send the cheque for expert opinion. Annex.A4 is the order. The learned counsel submits that already the cheque must have been forwarded to the expert. 2. In the mean time, steps were taken to continue the trial in the S. 138 prosecution. The petitioner filed an application to stop further proceedings. That prayer was turned down by the impugned order, copy of which is Annex.A6. The petitioner claims to be aggrieved by the impugned order. The learned counsel prays that the impugned order may be set aside and further proceedings may be directed to be stopped/stayed. Crl.M.C.No. 2462 of 2008 2 3. I have gone through the impugned order. The learned Magistrate appears to be conscious of the need to wait for the expert's opinion. This is clear from the following observations in paragraph 2. “Considering the contention in the petition it is necessary to give time to obtain the expert opinion. But the proceedings need not be stopped for the same. It is necessary to grant some time.” It appears to be evident that the learned Magistrate entertains the impression that time need be granted only when the matter reaches the defence stage. Until then it is not necessary to stop the proceedings. 4. I have no reason to assume, in the light of the mind of the court revealed from the above passage extracted from the impugned order, that the learned Magistrate will not wait till the expert's opinion is received before finally disposing of the case. There was no necessity for the petitioner to rush to this Court at this stage. Certainly trial can proceed till the stage of defence evidence and at the stage of defence if the expert's opinion is secured by then, there is no necessity to wait. If the expert's opinion is not received certainly the petitioner can request Crl.M.C.No. 2462 of 2008 3 the learned Magistrate to give further time to secure that opinion and introduce that in evidence in the case. 5. This Crl.M.C. is accordingly dismissed with the above observations. (R. BASANT) Judge tm