IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 Crl.MC.No. 3531 of 2011() ------------------------------------- AGAINST THE ORDER DATED 06/09/2011 IN CMP.NO.531/2011 IN ST.NO.37/2010 of JUDICIAL 1ST CLASS MAGISTRATE-IV, NEDUMANGAD .................... PETITIONER(S): ACCUSED ---------------------------------------- JAYAKUMAR, S/O. NARAYANA KURUP, REGHU MANDIRAM, KUDAPPANAKUNNU, THIRUVANANTHAPURAM. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S): COMPLAINANT & STATE -------------------------------------------------------------- 1. M.SHAJUDHEEN, PULIKKAPARAMBIL, VATTAPPARA P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.P.V.KUNHIKRISHNAN R2 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/12/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC.NO.3531/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX A COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMANGAD. ANNEX B COPY OF THE REPLY NOTICE DATED 20/11/2008 ISSUED BY THE PETITIONER. ANNEX C COPY OF THE PETITION AS C.M.P.NO.531/11 IN S.T.NO.37/10. ANNEX D COPY OF THE ORDER DATED 6/9/2011 IN C.M.P.NO.531/2011 IN S.T.NO.37/10 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT,NEDUMANGAD. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3531 of 2011 ----------------------------------- Dated this the 13th day of December 2011 O R D E R This petition is filed by the accused who is facing the trial for offence punishable under Sec.138 of N.I.Act. Prosecution evidence was completed. The accused was questioned under Sec.313 Cr.P.C. The accused and his wife were examined as DWs.1 and 2. Thereafter the case was stated to have been heard and posted for judgment. Learned counsel submits that an application was then filed by the petitioner/accused for getting the handwritings in Ext.P1 cheque and Ext.P7 letter and the specimen handwriting of DW2 taken in court for comparison, since a question was put to the accused by the learned Magistrate, after DW2 was examined, to the effect that the handwritings contained in Exts.P1 and P7 appear to be similar to the specimen handwriting of DW2. Therefore, the learned Crl.M.C. No.3531 of 2011 -: 2 :- counsel for the petitioner submits that the court has already taken a view that the cheque and the letter were in the handwriting of DW2. In that background, the learned counsel submits that unless the handwritings mentioned above are sent to an expert opinion, the petitioner's interest will be prejudiced as the court seems to have already taken a view that the handwritings were of DW2. According to the learned counsel, court cannot make an opinion of its own, as regards the handwritings contained in Exts.P1 and P7, as it has to be done by an expert. 2. The learned counsel for the complainant would submit that the order passed by the learned Magistrate itself would make it clear that question put to the accused under Sec.313 Cr.P.C. was only to give an opportunity to explain the circumstances but it does not mean that the court has entered a finding or conclusion by putting such question. But still the petitioner apprehends that the learned Magistrate has already taken a view and so unless Crl.M.C. No.3531 of 2011 -: 3 :- identity of the handwriting is got ascertained by getting an expert opinion it will prejudice his interest. 3. The learned counsel for the complainant would submit that a further hearing of both sides may be had so that if the learned Magistrate wants to rely upon the handwritings contained in Exts.P1 and P7 to come to a conclusion, by getting it compared with the specimen handwriting of DW2, then the learned Magistrate take an independent decision. After considering the rival submissions, the following directions are issued :- The learned Magistrate will hear the matter again; if the learned Magistrate wants to rely upon the handwritings contained in Exts.P1 and P7 as that of DW2 by comparing the specimen handwriting of DW2 taken in open court, then to see that no prejudice is caused to the accused, the same shall be got examined by an expert. If on the other hand, the learned Magistrate does not want to rely upon the handwriting of DW2 taken in open court and Crl.M.C. No.3531 of 2011 -: 4 :- does not want to get it compared by using the handwriting of DW2 then the learned Magistrate will take a decision without referring to those matters. The accused will appear before the court on the next hearing date itself. Till then, the execution of warrant shall be kept in abeyance. This Crl.M.C. is disposed of accordingly. N.K.BALAKRISHNAN, JUDGE. Jvt