IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 Crl.MC.No. 1434 of 2008() ------------------------- AGAINST THE ORDER IN CMP.8484/2007 IN ST.121/2005 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... PETITIONER: ------------ SHIBU THOMAS, AGED 38 YEARS, S/O.THOMAS, THEKKEMATTOM HOUSE, KOZHUVANAL P.O., PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM. BY ADV. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY RESPONDENTS: ------------- 1. MAYA MOHAN, W/O.MOHAN, MAYAVILASAM, KOZHUVANAL P.O., PULIYANNOOR VILLAGE, MEENACHIL TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.JOHNSON MANAYANI FOR R1 PUBLIC PROSECUTOR ADV.SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 1434 OF 2008 ----------------------------------------------- Dated this the 20th day of June, 2008 O R D E R The petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act. The complainant a woman alleged that the cheque was issued by the petitioner for the due discharge of a legally enforceable debt/liability. The petitioner took up a contention even in the reply to the notice of demand that the cheque was not issued for the due discharge of a legally enforceable debt/liability, but, was issued only as a blank signed cheque as security. The trial has commenced. The case has reached the defence stage. When the complainant, PW1 was being cross examined, she was confronted with a document which allegedly was written by her and in which, crucial admissions were allegedly made about the real nature of the transaction between parties. The defacto complainant denied the said latter. At the defence stage, the accused examined DW1 to introduce that document in evidence. The same has been marked subject to proof. That letter was allegedly written by the complainant and was sent to DW1 through the daughter of the complainant. Crl.M.C. No. 1434 OF 2008 2 According to the petitioner, he has in these circumstances no other or better method of proving the said document except by sending the same to the expert for comparison and report. Application to that effect filed by the petitioner was dismissed at the defence stage and the petitioner, in these circumstances, has come to this Court aggrieved by the impugned order. 2. I have heard the learned counsel for the petitioner and the learned counsel for the respondent-complainant. It is true that the learned Magistrate has an effective discretion under Section 254 Cr.P.C to summon a witness or refuse to do the same. The Magistrate need issue summons only “if he thinks fit” that summons must be issued to the witness. The petitioner wants the documents to be sent to the expert and a report obtained as evidence under Section 254 read with Section 311 Cr.P.C. 3. Considering the fact situation in this case I agree with the learned counsel for the petitioner that securing such evidence is absolutely necessary for a just and proper decision of the case. I am in these circumstances satisfied that the learned Magistrate must have sent the cheque to the expert for opinion after following Crl.M.C. No. 1434 OF 2008 3 the necessary procedure. I do note that proceedings have been initiated as early as in 2005 and there would be inevitable loss of time on account of this order passed by the Magistrate. But, notwithstanding that, I am satisfied that the paramount interest of justice and the interest of a fair trial demand that the petitioner’s prayer to that effect has to be allowed. If it is later found that the petitioner was only attempting to protract the proceedings, the Magistrate will not be powerless as the learned Magistrate will be at liberty to order principal interest on the cheque amount also as compensation and costs if the interests of justice would demand such a course. 4. With the above observations, this Crl.M.C is allowed. The impugned order is set aside. The learned Magistrate is directed to follow the requisite procedure and secure the opinion of the expert. R. BASANT, JUDGE ttb Crl.M.C. No. 1434 OF 2008 4 Crl.M.C. No. 1434 OF 2008 5 Crl.M.C. No. 1434 OF 2008 6