IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 Crl.MC.No. 1607 of 2008() ------------------------- CRLRP.2/2007 of SESSIONS COURT, PATHANAMTHITTA CC.1372/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA (CMP 7874/2006) .................... PETITIONER: ACCUSED: -------------------- SHAJI V.THOMAS, S/O. THOMAS, AGED 75 YEARS, VETTOLIL HOUSE, KUMERAMPEROOR VADAKKEKARA MURI, CHITTAR SEETHATHOD VILLAGE, PATHANAMTHITTA. BY ADV. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX RESPONDENTS: COMPLAINANT & STATE: --------------------------------- 1. P.K. SOMAN, PARUTHIYNICKAL HOUSE, KOZHENCHERRY TALUK, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER ADV. SRI.AJITH MURALI FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.1607 of 2008 ------------------------------------- Dated this the 15th day of September, 2008 ORDER Petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act. The case has reached the stage of defence evidence. The petitioner wanted the cheque to be sent to the expert for examination and opinion. 2. The cheque is for an amount of Rs.9 lakhs. A transaction for Rs.3,50,000/- is seen admitted though there is a plea that substantial portion of that liability has been discharged by payment. The petitioner has a case that the cheque was handed over as a blank signed cheque as security. The complainant on the contrary has a case that the cheque was issued for the due discharge of a legally enforcible debt/liability. The accused now wants the cheque to be sent to the expert. The point that he wants to prove is that the other entries in the cheque other than his signature are not made by him. This plea in substance is seen raised in the course of cross examination and when examined under Section 313 Cr.P.C though detailed narration of the case is not seen made. The crux of the defence is that the cheque was not entered by him and that a blank signed cheque handed over by him is being fraudulently Crl.M.C. No.1607 of 2008 2 misutilised. This version in its core is seen urged both in the course of cross examination and when examined under Section 313 Cr.P.C. 3. The petitioner's application to send the cheque to the expert was turned down by the learned Magistrate on the ground that the application is calculated to protract the proceedings. The notice of demand had not been served on the petitioner and the same has been returned unclaimed. In the complaint as also in the chief affidavit, specific assertions are seen made which appear to suggest that the entries in the cheque were made by the accused himself. 4. I am satisfied, in these circumstances, that the petitioner, who has the burden under Section 139 Cr.P.C to rebut the presumption, was perfectly justified in making a request to send the cheque to the expert. The fact that he did not send any reply to the notice of demand and the fact that specific suggestions were not made in the course of 313 examination about the authorship of the other writings in the cheque are, according to me, not sufficient in the facts and circumstances of the case to deny to the petitioner an opportunity to secure expert evidence on the point. The respondent has been served. But there is no representation for Crl.M.C. No.1607 of 2008 3 the respondent when the matter came up for arguments. I am satisfied from the totality of the circumstances that in the facts and circumstances of this case, the petitioner is entitled for the opportunity to procure expert evidence on the precise point of dispute - as to whether the other entries in the cheque are made in the handwriting of the petitioner. The denial of opportunity to him to adduce evidence on this aspect certainly works out prejudice, hardship and failure of justice against him. 5. I am satisfied, in these circumstances, that the petitioner can be granted opportunity to get the cheque examined by the expert. Sufficient precautions can also be taken. A direction can be and is hereby issued that if ultimately the court finds that the petitioner is culpably liable, the learned Magistrate must issue directions under Section 357(3) Cr.P.C to compensate the complainant including payment of interest on the principal amount due. 6. With the above observations, this Crl.M.C is allowed. The impugned order is set aside. The learned Magistrate shall forthwith take steps to forward the cheque to the expert for examination, comparison and report. (R.BASANT, JUDGE) rtr/-