IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 Crl.MC.No. 2737 of 2010(M) -------------------------- AGAINST THE ORDER IN CMP 72/2010 IN ST.965/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, PALA .................... PETITIONER : ACCUSED --------------- MARIYAMMA CYRIAC, ST.GEORGE L.P.SCHOOL MUTHOLI PO, MUTHOLI KARA. BY ADV. SRI.MATHEW ABRAHAM RESPONDENTS : COMPLAINANT & STATE --------------- 1. V.U.THOMAS, S/O. ULAHANNAN, VARAPARAMBIL HOUSE, KOZHUVAMKULAM KARA, KOZHUVAMKULAM P.O.686597 PULIYANNOR VILLAGE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR C.S.HRITHWIK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. --------------------------------- Crl.M.C.No.2737 of 2010 ---------------------------------- Dated this the 29th day of July, 2010 ORDER The petitioner who is the accused in S.T.No.965 of 2006 on the file of the Judicial Magistrate of the First Class-II, Pala which is a prosecution under Section 138 of the Negotiable Instruments Act filed C.M.P.No.72 of 2010 at the stage of defence evidence to forward the cheque in question to the handwriting expert for comparison regarding the writings in the cheque other than the signature. According to the petitioner what was handed over to the complainant was a signed blank cheque. 2. The learned counsel for the petitioner submits that the specific allegation in the complaint is that the cheque was written and signed by the accused and she came to the house of the complainant along with her husband and handed over the same on 3/4/2006. Counsel further submitted that as against this the case of the complainant in the proof affidavit Crl.M.C.No.2737/2010 : 2 : is that the accused wrote the amount in the cheque and came along with her husband to her house and signed the same. Going by the averment both in the complaint as well as in the sworn statement, the complainant had no case that the accused wrote the chqeue in her presence so as to vouch for the handwriting of the accused in the cheque. It is only if the complaint or the sworn statement would show that the accused wrote the cheque in her presence could the complainant be pinned down to the statement to say that the handwriting in the cheque belongs to the accused. When the complainant has no case that the accused wrote the cheque in her presence, merely because a cheque duly filled up was handed over to the complainant by the accused and her husband, it does not mean that the cheque was written by the accused in the presence of the complainant so as to seek a confirmation by an expert. Hence, the court below (the learned Magistrate) was fully justified in dismissing the application to send the cheque for comparison to the handwriting expert regarding the handwriting in the cheque Crl.M.C.No.2737/2010 : 3 : which even the complainant is not able to vouch for as belonging to the accused. I do not find any good reason to interfere with the order. Hence, this Criminal M.C. is dismissed. V.RAMKUMAR, JUDGE skj