IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 Crl.MC.No. 2351 of 2008() ------------------------- ST 4442/04 OF J.F.C.M. COURT-II, N. PARAVUR PETITIONER: ACCUSED ------------------- LALAN, S/O.RAMAN PILLAI, RAMADI VEEDU, CHENNAMANGALAM, PARAVOOTHARA, N.PARAVUR. BY ADV. SRI.S.RAJEEV RESPONDENTS: STATE ------------------ 1. M.K.NANAPPAN, PARAMBATHERIL, MUPPATHADOM, NOW RESIDING AT PARAMBATHERI, KOTHAPARAMBU, KODUNGALLUR P.O. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2351 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2008 O R D E R The petitioner is the accused in a prosecution under Section 138 of the N.I. Act. The cheque is for an amount of Rs.12,000/- The petitioner admits the transaction. But according to him the cheque was given only as security. He further contends that the liability has actually been discharged and the cheque is being pressed into service to claim the amount which has already been discharged. According to the petitioner, in his hand book the complainant has acknowledged the payment. The petitioner, even before he received the statutory notice, by Annex.A1 had demanded the return of the cheque on the basis of the discharge made as per the hand book. Stop payment memo was given to the bank also. The cheque was dishonoured on the ground of stop payment memo issued by the petitioner to his bank. To the notice of demand issued under Section 138 of the N.I. Act this specific stand was taken by the accused that the liability had been discharged as per the hand book in question. When the Crl.M.C.No. 2351 of 2008 2 complainant was in the witness stand he was confronted with the hand book and he denied the writings and signatures. The accused entered the witness stand and made an attempt to prove the hand book. Thereafter the petitioner wanted the said hand book to be sent to the expert for determination whether the handwriting in the hand book is that of the complainant or not. That application was dismissed by the learned Magistrate by the impugned order. The petitioner claims to be aggrieved by the impugned order. 2. The presumption under Section 139 of the N.I. Act stares at the petitioner. He has to establish his defence that the cheque is not issued for the due discharge of any legally enforceable debt/liability and the liability stands discharged by payment. There is dispute as to whether the hand writing in the hand book, which has been introduced into evidence already, is that of the complainant or not. 3. I find merit in the contention of the learned counsel for the petitioner that resolution of that controversy can be effectively done by getting the opinion of the expert about the authorship of the writing in the hand book. I have gone through the impugned order. Sufficient and satisfactory reasons are not shown to exist to justify the denial of Crl.M.C.No. 2351 of 2008 3 an opportunity to the accused to establish his defence. 4. Counsel for the complainant contends that the petitioner/ accused is interested only in protracting the proceedings. Appropriate safeguards can of course be taken if that be the truth. 5. In the result: a) This Crl.M.C. Is allowed. b) The impugned order is set aside. c) The learned Magistrate shall take necessary steps to forward the disputed hand book to the expert for comparison and opinion. The learned Magistrate shall take all possible steps to ensure that the report of the expert is obtained as expeditiously as possible. d) If ultimately the learned Magistrate is satisfied that the attempt to send the hand book was for the purpose of protracting the proceedings, the learned Magistrate must direct that the compensation along with the interests and cost be paid to the complainant under Section 357(3) Cr.P.C. (R. BASANT) Judge tm Crl.M.C.No. 2351 of 2008 4