IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 Crl.MC.No. 2738 of 2008() ------------------------- C.C. 8 OF 2008 BEFORE THE J.F.C.M. COURT II, KASARAGOD PETITIONER: ------------ DEEPAK KUMAR, AGED 42 YEARS, S/O. T.K. THANKAPPAN NAIR, ANANTHAPUSHPA, K-2 LANE, FALNEER, OPP.BHARAT PETROLEUM, MANGALORE - 1, KARNATAKA STATE BY ADV. SRI.KODOTH SREEDHARAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. B.M. SUBBANNA BHAT, AGED 67 YEARS, S/O. MALINGA BHAT, R/AT BALIKKE,POST DHARMATHADUKA, BADOOR VILLAGE, KASARAGOD TALUK AND DISTRICT BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-07-2008 , THE COURT ON 21/07/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. M.C. 2738 of 2008 * * * * * * * * * * * * * * * * * * Dated: 21-07-2008 ORDER Petitioner who is the accused in C.C. 8 of 2008 on the file of the J.f.C.M II, Kasaragod which is a prosecution under Sec. 138 of the Negotiable Instruments Act, involving a cheque of Rs. 1,50,000/- challenges the order dated 5-7-2000 passed by the said Magistrate rejecting the petitioner's application to send the cheque in question to the handwriting expert for an opinion regarding the author of the writings other than the signature in the cheque. 2. In support of the claim for sending the cheque to the handwriting expert, the learned counsel for the revision petitioner made the following submissions:- The complainant examined as P.W.1 would say that the handwriting in the cheque is that of the accused and that he has no difficulty if the cheque is sent to the expert to prove that the handwriting is of the accused. As against this, the 2 nd witness examined on behalf of the complainant as P.W.2 would say that the signature in Ext.P1 was put by the accused in his presence while the accused handed over the cheque to the complainant which was also in his presence. The learned Magistrate was not Crl. R.P. 2738 of 2008 -:2:- justified in holding that merely because the petitioner also raised a contention that the figure Rs. 1,50,000/- was obtained by adding one in front of the figure of Rs. 50,000/- to make up a total of Rs. 1,50,000/- the accused has no consistent case. 3. The case of the revision petitioner as suggested to P.W.1 was that the cheque in question was entrusted by him with oner Jayaram Shetty and that the said Jayaram Shetty and the complainant had collusively misused the cheque after effecting correction to the figure therein. However, when examined before court as DW1 he deposed before court that he does not know how Ext.B1 cheque came into the hands of the complainant. If, as a matter of fact, the cheque in question was entrusted by him with Jayaram Shetty as alleged by him, when he received the statutory notice from the complainant namely Subhanna Bhat, as a reasonable and prudent man, he ought to have realised that the cheque was passed on by the said Jayaram Shetty to the complainant herein without his knowledge or consent in which case he would have proceeded against Jayaram Shetty for betraying the confidence which he reposed in him. No such thing has happened. He could not even sent a lawyer notice to Jayaram Shetty. Under the circumstances, the defence set up by him is not tenable. Moreover, he has admitted his signature in the cheque and his only dispute is regarding the other writings in the cheque. The handwriting expert is not competent to give an opinion regarding the age of the writings. In any view of the Crl. R.P. 2738 of 2008 -:3:- matter, the opinion of the handwriting expert is only an opinion evidence which is not conclusive unlike that of the fingerprint expert. I see no reason to interfere with the discretion exercised by the court below. This Revision is accordingly dismissed. It is made clear that the trial of the case shall be uninfluenced by any observations made both in the impugned order as well as this order. V. Ramkumar, Judge. ani/