IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 CRL.REV.PET.NO. 1520 OF 2009() --------------------------------------------- CC.665/2007 OF JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA .................... REVN. PETITIONER(S): PETITIONER/ACCUSED --------------------------------------------------------------- ROY,S/O.KORAH, PALACKATHOTTIYIL HOUSE, POOMALA,THODUPUZHA. BY ADV. SRI.V.K.SUNIL SRI.AJEY THOMAS RESPONDENT(S): COMPLAINANT & STATE ----------------------------------------------------------- 1. MATHEW JOHN,S/O.ULAHANNAN, MADAPPALLIKUNNEL,THENNATHOOR KARA, KODIKULAM VILLAGE,THODUPUZHA. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. SRI.UNNIKRISHNAN.V.ALAPATT FOR R1 BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1520 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 29th day of June, 2009 O R D E R -------------- This revision is in challenge of order dated 2.5.2009 in Crl. M.P. No.2672 of 2009 in C.C. No.665 of 2007 of the court of learned Judicial First Class Magistrate, Thodupuzha. 2. Petitioner is facing prosecution for offence punishable under Section 138 of the negotiable Instruments Act on a complaint preferred by respondent No.1. According to respondent No.1 Ext.D1, agreement was executed between himself and petitioner as per which the latter was allowed to cut and remove the rubber trees in his property. Total consideration fixed was Rs.5.00,000/-. Out of the said amount respondent No.1 received Rs.10,000/- on 14.4.2007, Rs.40,000/- on 30.4.2007, Rs.2,50,000/- on 14.5.2007 and another Rs.1,00,000/- on 17.5.2007. Total amount thus paid by petitioner is Rs.4,00,000/-. It is the further case of respondent No.1 that for the balance sum of Rs.1,00,000/- petitioner issued the cheque in question which was dishonoured for insufficiency of funds. Petitioner resisted the complaint. According to him he has already paid Rs.4,90,000/- pursuant to Ext.D1, agreement balance being is only Rs.10,000/- and CRL. R.P. No.1520 of 2009 -: 2 :- making use of the cheque given as security, complaint has been preferred. Respondent No.1 gave evidence as P.W1. D.W.1 is an attester in Ext.D1. D.W.2 is the father of respondent No.1. Petitioner examined D.W.2 to prove that on 22.5.2007 Rs.2,90,000/- was paid by petitioner to respondent No.1 in the presence of D.W.2 receipt of which was acknowledged on the back of Ext.D1 by D.W.2 in his handwriting. When the disputed acknowledgment was put to D.W.2 he was not sure enough whether it is in his handwriting but later he asserted that it is not in his handwriting. He denied the suggestion that in his presence Rs.2,90,000/- was paid to respondent No.1 on 22.5.2007. D.W.2 admitted that agreement was prepared in his handwriting. Respondent No.1 denied the said payment. It is in the above circumstances that petitioner filed Crl.M.P. No.2672 of 2009 to send the disputed acknowledgment on the back of Ext.D1 for expert opinion. That petition was dismissed by learned magistrate. Petitioner contends that the order is illegal in that it deprived petitioner of an opportunity to substantiate his contention. Learned counsel for respondent No.1 would contend that attempt of petitioner is somehow to protract the proceeding. According to learned counsel schedule for payment of the amount is stated in Ext.D1 and no CRL. R.P. No.1520 of 2009 -: 3 :- payment was made on 22.5.2007 as pleaded by petitioner. 3. Question whether there was any payment on 22.5.2007 is a matter relevant for consideration so far as the defence set up by petitioner is concerned. Whether there was such a payment is to be decided in evidence. According to the petitioner disputed acknowledgment on the back of Ext.D1 is made in the handwriting of D.W.2 in whose handwriting admittedly that agreement is written. As D.W.2 denied the acknowledgment, there arose necessity to send the document for opinion of an expert. 4. On the facts and circumstances of the case and considering the defence set up by petitioner I am inclined to think that it is relevant and necessary to ascertain for a proper decision of the case whether the disputed acknowledgment on the back of Ext.D1 is that of D.W.2. To deprive petitioner of that opportunity would amount to denial of fair trial. It is true that case is of the year 2007. But mere pendency of the case for two years is not sufficient to refuse the request of petitioner. I must also bear in mind that occasion for petitioner to request to send the disputed acknowledgment on the back of Ext.D1 arose only when D.W.2 denied the acknowledgment. Hence the order under challenge cannot be sustained and is liable to CRL. R.P. No.1520 of 2009 -: 4 :- be set aside. Resultantly, this revision is allowed. Order under challenge dismissing Crl. M.P. No.2672 of 2009 is set aside. That petition will stand allowed. Petitioner shall furnish the addresses of experts. Learned magistrate shall send the document to a suitable expert. Expenses of the expert shall be deposited by petitioner in the court below as may be directed by learned magistrate. Learned magistrate shall take all necessary steps, including getting specimen handwriting of D.W.2, as may be necessary for the expert to conduct the examination. Learned magistrate is also directed to expedite the proceeding, trial and disposal of the case. THOMAS P.JOSEPH, JUDGE. vsv