IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 Crl.MC.No. 264 of 2011() ---------------------------------- (C.M.P.NO.2369/2010 IN S.T.NO. 414/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS-II, HARIPAD ) .................... PETITIONER(S): ACCUSED --------------------------------------- PUSHPA RAVI, W/O.RAVI, MALAMEL BHAGOM MURI, KEERIKKADU VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): COMPLAINANT -------------------------------------------------- 1. B.K.RAJAN, S/O.BALAKRISHNA PANICKER, AMAR COTTAGE, PATHIYOOR PADINJARU MURI, PATHIYOOR VILLAGE, ALAPPUZHA-690 552. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. R2 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.264 of 2011 -------------------------------------- Dated this the 1st day of March, 2011. ORDER Petitioner is accused in S.T.No.414 of 2008 of the court of learned Judicial First Class Magistrate-II, Harippad facing trial for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Petitioner filed C.M.P.No.2369 of 2010 to send the disputed cheque to the expert for opinion claiming that he has neither written nor signed the cheque. Learned Magistrate by Annexure-A3, order dated 14.12.2010 rejected the prayer. That order is under challenge. Learned counsel submitted that since the signature is disputed petitioner should have been given an opportunity to get the cheque examined by the expert. 2. Learned Magistrate observed that respondent did not say in his evidence that the cheque was written by petitioner, instead, he only said that petitioner brought the cheque filled up and signed it in his presence. Learned Magistrate also observed that there was no reply to the notice served on petitioner intimating dishonour of the cheque. Though, while recording statement under Section 313 of the Code of Criminal Procedure it is stated that there was theft in the house of petitioner and that the cheques were lost accordingly and misused, there was no complaint preferred against the alleged theft. It is in the Crl.MC No.264/2011 2 above circumstances that learned Magistrate refused to send the cheque for expert opinion. 3. Having heard learned counsel I do not find reason to interfere under Section 482 of the Code of Criminal Procedure. But I make it clear that it will be open to the petitioner to challenge correctness of Annexure-A3, order in case an appeal is preferred against the judgment of learned Magistrate. The order passed by this Court shall not stand in the way of petitioner challenging the impugned order in the appeal against the judgment of learned Magistrate. With the above direction this petition is closed. THOMAS P.JOSEPH, Judge. cks