IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 Crl.MC.No. 783 of 2008() ------------------------ PETITIONER: ACCUSED ------------------- PAVITHRAN, AGED 50 YEARS, S/O. KRISHNAN MASTER, RAYAROTH HOUSE, MUTTUNKAL AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENTS: COMPLAINANT & STATE -------------------------------- 1. K.RETNAKARAN, AGED 40 YEARS, S/O. RAMANKUTTY, KUZHIPILLIL HOUSE, MELUR AMSOM, KOYILANDI TALUK, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.783 of 2008 ---------------------------------------- Dated this the 1st day of July 2008 O R D E R The petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act. The petitioner has taken up a fairly definite case even from the stage of the reply notice that the petitioner had handed over the cheque as a blank signed cheque as security to another person and the complainant in collusion with that person is misutilising the said cheque to stake a fanciful claim. The petitioner filed an application at an early stage of the trial to send the cheque to the expert. The application was rejected holding that the same is premature. At the defence stage, the petitioner/accused filed another application to send the cheque to the expert. That application was also turned down by the learned Magistrate by the impugned order. 2. The learned counsel for the petitioner submits that the process of reasoning which led to the rejection of the prayer for sending the cheque to the expert now is totally unjustified and it does affect the option available to the petitioner to rebut the presumption under Section 139 of the Negotiable Instruments Act. The denial of permission to secure expert evidence affects the right of the petitioner for a fair trial and Crl.M.C.No.783/08 2 denies him reasonable opportunity to establish his innocence. 3. I shall not advert in greater detail to the contentions raised or make any expression of opinion which may adversely affect the interests of either contestant. Suffice it to say that I take note of the circumstance that even in the reply notice the present contention is seen urged in its core. I do further note that the petitioner has always been attempting to get the cheque examined by the expert and that his earlier attempt was not accepted by the court holding that the application is premature. The present application has been made at the appropriate time - that is at the defence stage. 4. The learned counsel for the respondent with the help of the decision in Gopal S. v. D. Balachandran [2008(1) KLD 517 (Mad.)] contends that the age of the different writings on the same cheque cannot be ascertained by the expert. The learned counsel for the petitioner refutes this assertion and points out that the Supreme Court in the latest decision in T.Nagappa v. Y.R.Muralidhar [2008(3) Supreme Court Today 196] has taken the view that a cheque can be sent to the expert to ascertain the age of the different writings in the same cheque. I do not want to express any final opinion on that question. Certainly it is for the expert to say whether such ascertainment of the age of different writings in the same cheque is possible or not. Crl.M.C.No.783/08 3 5. I am satisfied that there is merit in the contention of the learned counsel for the petitioner that denial of opportunity to the petitioner to get the cheque examined by an expert would affect his right to reasonable opportunity to establish his defence and prove his innocence. I am satisfied that this Crl.M.C deserves to be allowed. 6. In the result, a) This Crl.M.C is allowed. b) The impugned order is set aside. c) C.M.P.NO.5555/2007 is allowed and the learned Magistrate shall take necessary steps to get the opinion of the expert on the questions raised in the petition. 7. The learned counsel for the respondent/complainant submits that the only intention of the respondent is to protract the proceedings. I am satisfied that appropriate safeguards can be provided. If ultimately the complainant succeeds, the learned Magistrate must direct payment of compensation under Section 357 (3) Cr.P.C along with interest (at just and reasonable rate) that would be payable from the date of presentation to the date of final order. (R.BASANT, JUDGE) jsr Crl.M.C.No.783/08 4 Crl.M.C.No.783/08 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007