IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 Crl.MC.No. 1377 of 2009() ------------------------- CMP. 3475 /2008 IN CC.372/2007 OF JUDICIAL FIRST CLASS MAGISTRATE – VI, NEYYATTINKARA ................... PETITIONER / COMPLAINANT ----------------------------------------- CYRIL MORAIS, ST.JACOBS HOUSE, PULLUVILA, KARIMKULAM DESOM, KARIMKULAM VILLAGE. BY ADV. SRI. R.T. PRADEEP RESPONDENTS / STATE AND ACCUSED -------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SALIM, S/O.MUHAMMED KHADER, HOUSE NO.URAP-4, WARD NO.II, VALIYAVILA, VELLAKETTUVILA, PALLICHAL PANCHAYATH. R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM R2 BY ADV. SRI. R. GOPAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR, J. ------------------------------------ Crl.M.C. No.1377 OF 2009 ------------------------------------- Dated this the 3rd day of September, 2010 O R D E R ~~~~~~~~ Petitioner is the complainant in C.C.No.372/2007 on the file of the Judicial First Class Magistrate-VI, Neyyattinkara taken cognizance for the offence under Section 138 of the Negotiable Instrument Act against second respondent/accused. When petitioner was examined as PW1, Exts.D1 and D2 receipts were confronted contending those receipts were issued by the petitioner for receipt of the amount shown therein. Petitioner denied the receipt of the amount. In cross examination, he admitted signatures in both Exts.D1 and D2, but in re- examination, he denied the signatures stating that those signatures were put by looking his signatures obtained in a white paper. Thereafter, petitioner filed C.M.P.No.3475/2008, an application to send Exts.D1 and D2 to Forensic Science Laboratory for comparison with his signature, contending that the signatures are not his signatures. By Annexure-A3 order, learned Magistrate dismissed the petition holding that when examined as PW1, he has already admitted the signatures and more over under Section 73 of the Indian Evidence Act, Court Crl.M.C.No.1377/2009 2 can compare the signature and therefore, there is no need to call for an opinion from the expert. This petition is field contending that in the light of the evidence of the petitioner in re- examination, finding of the learned Magistrate that petitioner admitted the signatures is not correct. It is also contended that when the signatures in Exts.D1 and D2 are disputed, learned Magistrate should have called for the report of an expert. 2. Learned counsel appearing for the petitioner and the second respondent were heard. 3. Learned counsel appearing for the petitioner relying on the decision of the Apex Court in Thiruvengadam Pillai v. Navaneethammal [2008(4)SCC 530] argued that the learned Magistrate should not have taken the hazardous task of comparing the signatures seen in Exts. D1 and D2 without the aid of an expert, when the petitioner has already denied the signatures seen in Exts.D1 and D2. Learned counsel appearing for the second respondent argued that as PW1 has admitted both the signatures, there is no need to send them to the Forensic Science Laboratory. Crl.M.C.No.1377/2009 3 4. Though in cross-examination, PW1 admitted the signatures, in re-examination he denied the signatures. Therefore, the finding of the learned Magistrate that signatures in Exts.D1 and D2 were admitted by PW1 is factually not correct. When second respondent, who produced Exts.D1 and D2 receipts allegedly issued by the petitioner claiming that they were issued after receiving the amount shown therein, petitioner would contend that he did not receive any amount and did not issue those receipts. In such circumstances, learned Magistrate was not justified in dismissing the application for sending Exts.D1 and D2 to the expert as sought for. In the light of the disputed signatures, learned Magistrate should have send Exts.D1 and D2 to an expert as sought for. Petition is allowed. Annexure-A3 order is quashed. Judicial First Class Magistrate-VI, Neyyattinkara, is directed to send Exts.D1 and D2 to the Forensic Science Laboratory as sought for at the expense of the petitioner. It is upto the petitioner to take necessary steps before the learned Magistrate to send the documents to the Laboratory. (M.SASIDHARAN NAMBIAR, JUDGE) ps