IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 Crl.Rev.Pet.No. 2674 of 2008() ------------------------------ AGAINST THE ORDER DATED 31/07/2008 IN CMP 853/2008 IN CC.35/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS, KALPETTA. .................... REVISION PETITIONER/PETITIONER(ACCUSED) ---------------------------------------------------- SMT.MOLLY, W/O. LATE SUDHEER KUMAR, MALANA HOUSE, KUPPAYATHODE, PUTHUPPADY, KOZHIKODE DISTRICT BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS/RESPONDENT(COMPLAINANT)& STATE ------------------------------------------------------ 1. M.P.SREEKUMARAN, SAI SMRITHI, AMBELERI, KALPETTA P.O., WAYANAD DISTRICT 2. STATE OF KERALA, REP.BY THE PUBLIC PRSECUTR, HIGH COURT OF KERALA, ERNAKULAM BY ADV. SRI. C.M. NAZER, PUBLIC PROSECUTOR SRI. RAMESAN NAMBEESAN for R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No. 2674 of 2008 ========================== Dated this the 20th day of August, 2008. ORDER Heard both sides. 2. The petitioner who is the accused in C.C. No. 35 of 2008 on the file of the Judicial First Class Magistrate, Kalpetta, which was a prosecution under Section 138 of the Negotiable Instruments Act, 1881, involving a cheque for Rs.1,50,000/-, challenges the order dated 31.07.2008 passed by the Magistrate dismissing his application (C.M.P. No. 853 of 2008) filed under Section 45 of the Evidence Act requesting the court below to forward the cheque in question to the handwriting expert to ascertain whether the writings in the cheque are in the handwriting of the revision petitioner/accused. 3. The above petition was filed at the stage of defence evidence. As per the evidence now before court, the complainant who is a retired General Manager of Wayanad District Co- Operative Bank, had lent a sum of Rs.1,50,000/- on the request of the accused, widow of late Sudheer Kumar and she gave CRL.R.P. NO. 2674/2008 : 2: Ext.P1 cheque to discharge the said liability. The complainant examined as PW1, deposed that the name of the payee as well as the date in the cheque were put by him as requested by the accused. He was not specifically cross examined with regard to the other writings in the cheque namely the amount written in words and figures. As far as the signature is concerned, it is admittedly that of the revision petitioner/accused. The learned counsel for the revision petitioner would submit that the suggestion put to PW1 that the cheque was not written by the accused will take in the writings pertaining to the amount in words and figures. I cannot agree. When the complainant examined as PW1 has specifically stated that the name of the payee and the date in the cheque were put by him, there should have been cross examination specifically with regard to the authorship of the writings regarding the amount. Having not specifically cross examined PW1 with regard to the said aspect of the matter, the petitioner was attempting to make good his omission by alleging in the present application that the writings in the cheque regarding the amount was not put by him. In spite of CRL.R.P. NO. 2674/2008 : 3: taking such a contention in the present application, the prayer in the petition was to send the cheque to ascertain whether the writings in the cheque were written in the handwriting of the accused or not. She did not specifically cross-examine the complainant regarding the writings of amounts in the cheque. It was in this backdrop that the Magistrate who had a unique advantage of seeing the witnesses and assessing their credibility, was not inclined to allow the application. The stand taken by the revision petitioner in the reply to the statutory notice was given a go bye when she was examined under Section 313(1)(b) Cr.P.C. This was also taken note of by the Magistrate while dismissing the application. I see no reason to interfere with the discretion exercised by the learned Magistrate. This revision is accordingly dismissed. Dated this the 20th day of August, 2008. V. RAMKUMAR, JUDGE. rv CRL.R.P. NO. 2674/2008 : 4: