IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.MC.No. 3548 of 2008() ------------------------- CMP.963/2008 IN C.C. 110/08 OF JFMC-II, KASARGODE .................... PETITIONER(S): ACCUSED ---------------------- M. GOKULDAS SHENOY, AGED 50 YEARS, S/O.M.K.G. SHENOY, G2-SADGURU APARTMENTS, NEAR MANGALA AGENCY, OPP. TAJ MAHAL CAFE, CAR STREET, MANGALORE.D.K, KARNATAKA STATE. BY ADV. SMT.R.PADMAKUMARI RESPONDENT(S): STATE AND COMPLAINANT ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KISHORE BANGERA, AGED 41, S/O. NARAYANA MOOLYA, BALEITHULU HOUSE, KUDALMERKALA VILLAGE AND POST, VIA MANGALPADY, KASARAGOD. R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB ADV. SRI.SAJEEV KUMAR K.GOPAL FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3548 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of October, 2008 O R D E R The petitioner faces indictment in a prosecution under Section 138 of the N.I. Act. The trial in the case is almost over. At the stage of defence evidence, the petitioner wanted the cheque in question to be sent to the expert. Signature in the cheque is admitted. The short contention raised is that the cheque was handed over to a finance company as early as in 1997. That cheque is being misutilised a decade later by the complainant at the instance of the said company, it was contended. 2. This contention is advanced even in the prompt reply sent to the demand notice issued by the complainant. The defence was urged in the course of the trial. The petitioner had taken the witness stand after securing the requisite permission under Section 315 Cr.P.C. The learned counsel for the petitioner submits that the petitioner had done everything possible to substantiate his case. The counsel relied on the decision of the Crl.M.C.No. 3548 of 2008 2 Supreme Court in Nagappa v. Muralidhar (2008 (3) KLT 158 (SC). 3. The learned counsel for the respondent submits that there is absolutely no bonafides and the attempt is only to some how protract and prolong the proceedings. No steps were taken to get the cheque examined by an expert. 4. Having considered all the relevant circumstances and in the light of the decision in Nagappa (supra) I am persuaded to agree that the petitioner, who has the burden under Section 139 I.P.C. to rebut the presumption must be given the opportunity which he is seeking now. I find no reason not to grant that opportunity to the petitioner, who had promptly raised this contention in the reply to the notice of demand itself. I am at the same time satisfied that appropriate safeguards must be provided so that the respondent may not suffer by the delay in the disposal of the case, which bears the number C.C.110 of 2008 and the complaint is seen filed only in 2007. 5. This Crl.M.C. is accordingly allowed. The impugned order is set aside. The learned Magistrate is directed to send the cheque to the Crl.M.C.No. 3548 of 2008 3 expert for comparison in accordance with law. There shall be a further direction that if ultimately the petitioner were found to be guilty of the offence under Section 138 of the N.I. Act, appropriate direction under Section 357(3) Cr.P.C. must be issued in the light of the decision in Sathyan v. Yooseff (2006 (4) KLT 923) in favour of the respondent herein to pay the cheque amount along with interest due at reasonable rates from the date of the cheque as already held in Nagappa (supra). (R. BASANT) Judge tm