IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Crl.MC.No. 2204 of 2009(E) ------------------------- CRRP.47/2008 of ADDL.SESSIONS COURT, KOTTAYAM .................... PETITIONER: ------------------ G.MOHANA KUMAR, SHANMUGHA SADANAM, RUBY NAGAR P.O., CHANGANASERRY. BY ADV. SRI.P.K.MANOJKUMAR SMT.SUSHYA RAJAN RESPONDENTS: --------------------- 1. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. AHAMMED KABEER, NOOR MAHAL, THONNALLOOR,PANDALAM P.O. R1 BY PUBLIC PROSECUTOR SRI.B.VINOD. R2 BY SRI.R.SUNIL KUMAR SMT.A.SALINI LAL THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No.2204 of 2009 ================== Dated this the 11th day of August, 2009. O R D E R Petitioner, the complainant in ST.168/2007 on the file of Judicial First Class Magistrate-II, Changanassery filed this petition under section 482 of Code of Criminal Procedure to quash Annexure A6 order wherein learned Sessions Judge set aside Annexure A4 order passed by the learned magistrate and dismissed CMP.787/2008 filed by the 2nd respondent accused to sent Ext.P1 dishonoured cheque to obtain a report from an expert on examining the signature and hand writing. Under Annexure A4 order, the learned magistrate dismissed the application for the reason that the 2nd respondent did not convince the learned magistrate that an analysis to find out the period of writing is available and even if there is an age difference between the writings in the cheque and signature, it is not relevant. Learned Sessions Judge under the Annexure A6 order set Crl.M.C. No.2204 of 2009 2 aside that order finding that the reasons given by the learned magistrate are not valid or sufficient. The argument of the learned counsel for the petitioner is that the learned Sessions Judge should not have interfered with that the order and inspiting the order second respondent did not take any steps to send the cheque to the expert, even though Annexure A6 order was passed on 15.1.2009. 2. Heard the learned counsel for the petitioner and second respondent. I find no reason to interfere with Annexure A6 order. If the respondent could establish that the writings in Ext.P1 dishonoured cheque and the signature are of the same period it would definitely be a relevant fact to decide whether the cheque was issued as claimed by the petitioner or as contended by the second respondent. The mode of proof and the way in which the fact is to be proved is to be decided by accused. It cannot be dictated by the complainant. The learned Sessions Judge rightly granted an opportunity to the second respondent to Crl.M.C. No.2204 of 2009 3 prove his case by sending Ext.P1 cheque to the expert. Hence no interference is warranted in Annexure A6 order. If the case of the petitioner is that inspite of Annexure A6 order second respondent did not remit the necessary fees to be sent to the expert and thereby protracting the case sufficient directions could be issued. Second respondent is directed to take steps to forward the cheque to the expert within ten days. 3. Petition is disposed. Learned Magistrate is permitted to proceed with the trial, without sending the cheque to the expert, if second respondent/accused did not take steps by depositing the sufficient amount before the learned magistrate within ten days from the date of receipt of this order. M.SASIDHARAN NAMBIAR JUDGE app/-