IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.MC.No. 806 of 2009(C) ---------------------------------- C.C.NO.883/2002 OF JUDL.MAGISTRATE OF RIST CLASS, PALA CMP.7684/2005 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... PETITIONER/ACCUSED: --------------------------------- C.A.UNNIKRISHNAN, S/O.APPU GUPTHAN CHEMPAMPADATH HOUSE, VAKKADAPURAM, OTTAPALAM. BY ADV. MR.SAJEEV KUMAR K.GOPAL RESPONDENTS/STATE & COMPLAINANT: ---------------------------------------------------------- 1. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. P.I.DEVASSIA, PARAYIL HOUSE PALLASANAL, THALAPPALAM. R1 BY PUBLIC PROSECUTOR MR.GIKKU JACOB R2 BY ADV. MR.PAUL MATHEW (PERUMPILLIL) MR.P.V.SREENIJIN MRS.K.B.SONY MR.PRASUN.S MR.SANU.S.PANICKER MR.K.T.BOSCO THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 806 of 2009 ================== Dated this the 25th day of May, 2009. O R D E R Petitioner is the accused in C.C.No.883/2002 on the file of Judicial First Class Magistrate Court, Pala. 2nd respondent is the complainant. Case was taken cognizance on a complaint filed by 2nd respondent alleging that petitioner committed offence punishable under Section 138 of the Negotiable Instruments Act. At the defence stage, petitioner filed a petition (CMP No.7684/2005) to send the dishonoured cheque to Forensic Science Laboratory, Thiruvananthapuram for comparison of signature seen therein with his admitted signature. Under Annexure A2 order petition was dismissed. It is challenged in this petition filed under Section 482 of Code of Criminal Procedure. Crl.M.C.No.806/2009 -2- 2. Learned Counsel appearing for petitioner and Counsel appearing for 2nd respondent were heard. 3. Learned Counsel appearing for 2nd respondent pointed out that petitioner had earlier sought to cross-examine the wife of the 2nd respondent as a witness and she had to approach this Court by filing Crl.M.C.No.2638/2008 and though the application was allowed by the learned Magistrate, under Annexure R2(b) order, the order was set aside by this Court. The petitioner did not send any reply to the notice issued by the 2nd respondent under Section 138(b) of Negotiable Instruments Act and he has no consistent case and there is no bonafides in the petition and is only an attempt to protract the trial by forwarding it to Forensic Science Laboratory. It was submitted that when 2nd respondent was examined as PW1 in cross-examination, it was suggested by petitioner that the cheque was given to the wife of the Crl.M.C.No.806/2009 -3- 2nd respondent and at the time of questioning under Section 313 of Code of Criminal Procedure case was that the cheque was issued for settlement of the case of 2nd respondent with Poulose. Under such circumstance there is no reason to interfere with Annexure A2 order. 4. The learned Counsel appearing for the 2nd respondent was directed to point out any material to show that petitioner had admitted his signature in the disputed dishonoured cheque. The learned Counsel could not show any such admission. Though the evidence of PW1 was pointed out it is seen that what was suggested to PW1 by the Counsel appearing for the petitioner was that cheque was not issued by the petitioner and in answer to that question PW1 deposed that the cheque was issued by the petitioner. It cannot be taken as an admission by the petitioner of the signature in the dishonoued cheque. Crl.M.C.No.806/2009 -4- 5. The fact that no reply was sent to the notice by the petitioner by itself is not a ground either to hold that the signature in the dishonoured cheque is that of the petitioner or that the cheque was issued towards repayment of loan as claimed by the 2nd respondent. 6. The question whether the signature seen in the dishonoured cheque is that of the petitioner or not is the most relevant aspect to be decided in this case. The petitioner definitely is entitled to prove that the signature is not his. The mode of proof is to be decided by the petitioner. Neither the complainant nor the Court could direct the accused to prove that the fact in a particular way. It is to be proved by the accused. In such circumstances when the petitioner has a definite case that the signature seen in the dishonoured cheque is not his signature and there is no admission anywhere that the signature seen in the Crl.M.C.No.806/2009 -5- dishonoured cheque is that of the petitioner, petitioner is entitled to prove that the signature seen in the dishonoured cheque is not his signature. 7. The petitioner has to chose and decide how that fact is to be proved. When evidence of an expert on that question is relevant and is a better evidence, petitioner could not be denied an opportunity to adduce the evidence. True, there may be some delay in disposing the case if the cheque is to be sent to the Forensic Science Laboratory. But that is not a ground to deny the opportunity to the defence. Under such circumstances Annexure A2 order is quashed. C.M.P.No.7684/2005 stands allowed. Magistrate is directed to forward the dishonoured cheque with the admitted signature of the petitioner to Forensic Science Laboratory at the expense of the petitioner. Petitioner shall deposit necessary amount before the Magistrate to be fixed by the Court within two weeks Crl.M.C.No.806/2009 -6- from the date of the order fixing the amount. Magistrate to direct the Forensic Science Laboratory to forward the report without delay and dispose the case expeditiously. M.SASIDHARAN NAMBIAR JUDGE dkr