IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 Crl.MC.No. 3467 of 2006 -------------------------------- CC.2721/2003 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI ................... PETITIONER/ACCUSED: --------------------------------- T.C.MATHEW, S/O. CHANDY, AGED 39, THENNATTIL HOUSE, KATTAPANA SOUTH P.O., VALLAKADAVU KARA, KATTAPANA VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.K.R.MOHANAN RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------ 1. V.K.ELDHOSE, VELLAMKUZHY HOUSE, PEEKAYS HOUSE, NO.33/2323 B, P.C.CROSS ROAD, COCHIN-19. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 - BY ADVS.M/S. SRI.K.JAYAKUMAR & SRI.P.B.KRISHNAN R2 - BY PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3467 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of November, 2008 ORDER Petitioner who is being prosecuted at the instance of respondent No.1 herein in four Calendar Cases before the Judicial Magistrate of First Class - I, Kochi for the offence punishable under Section 138 of the Negotiable Instruments Act has preferred this petition under Section 482 of the Code of Criminal Procedure impugning Annexure IV order passed by the learned Magistrate rejecting his application to send his signature to the Forensic Science Laboratory, Thiruvananthapuram for comparison with the signature in Ext.P14 agreement. 2. The learned Magistrate while dismissing the application held that on a comparison of the signatures of the petitioner/accused in various documents available before the court, she was prima facie satisfied that the disputed signature in Ext.P14 was put by the petitioner himself . The correctness of the said order is under challenge in this petition. 3. As mentioned earlier, petitioner is being tried for the offence punishable under Section 138 of the Act in the four Calendar Cases viz., CC.Nos.2721, 2722, 2723 and 2724 of 2003. The above 4 cases have been instituted by respondent No.1 alleging that the 4 cheques issued by the petitioner for Rs.2 lakhs each were dishonoured when they were presented for encashment. Even though the petitioner sent a reply notice to the statutory demand notice, the liability was not Crl.MC.3467/06 2 discharged by him. Hence the complaints. 4. It is on record that respondent No.1/complainant had filed his proof affidavit in lieu of chief examination. In the said proof affidavit the complainant had referred to an agreement which was stated to have been executed between him and the petitioner. It is not in dispute that the said agreement refers to the 4 cheques which are the subject matter of the four cases. But according to the petitioner, he had not signed in the said agreement, referred to in the proof affidavit as Ext.P14. It was in the above circumstances that the petitioner had filed the application before the learned Magistrate requesting to send the admitted signatures of the petitioner along with the disputed signature for comparison to the laboratory. 5. It is pertinent to note that petitioner has not disputed his signature in the 4 cheques. According to him, he happened to issue the 4 cheques to respondent No.1 towards commission payable to the Finance Manager of the State Bank of Travancore, Kottayam Branch, which had agreed to advance a loan of Rs. One Crore to him. The cheques were handed over to respondent No.1 since he represented that he was the commission agent acting on behalf of the Finance Manager of the Bank. According to the petitioner, he had believed the words of respondent No.1 and handed over the four cheques, apart from a sum of Rs.3 lakhs in cash. But later, the petitioner came to Crl.MC.3467/06 3 know that respondent No.1 had managed to obtain the four cheques and the cash of Rs.3 lakhs by playing fraud on him. Therefore he had instituted a suit against respondent No. 1 as O.S.No.110/2005 before the Subordinate Judges' Court, Kattappana for realization of Rs.3 lakhs, and also for return of the 4 cheques. According to the petitioner, the civil court had decreed the suit in his favour. However the appeal preferred by respondent No.1 against the said judgment and decree is now pending before the appellate court. 6. Petitioner contends that no reliance can be placed on the agreement referred to above, since he had not put his signature in the said document. A perusal of the said agreement shows that petitioner had handed over 4 cheques involved in the 4 cases. The fact remains that the complainant has to necessarily prove his case on the strength of the oral and documentary evidence to be adduced by him. The agreement may be one piece of evidence on which the complainant may place reliance. But the crucial aspect to be considered in a prosecution under Section 138 of the Act is whether the cheque is executed and issued by the drawer in discharge of a legally enforceable debt or liability. As noticed already, the petitioner/accused has not disputed his signature in the 4 cheques. According to him, he happened to issue those cheques because of the fraud played on him by respondent No.1. Crl.MC.3467/06 4 7. It is true that respondent No.1 has got a totally different version. According to him petitioner had borrowed a sum of Rs.8 lakhs, as narrated in the agreement, and it was in connection with that loan transaction that the petitioner had issued the 4 cheques. Of course the agreement may or may not have a bearing in the case. The learned Magistrate had compared the admitted signatures and the disputed signatures with her naked eye and recorded her prima facie satisfaction that the disputed signature was put by the petitioner himself. 8. In the nature of the dispute in this case, I do not find any reason to interfere with the order passed by the learned Magistrate. I hasten to add that I have not considered the merit of the contentions raised by the parties. It is made clear that it will be open to the petitioner and respondent No.1 to urge all their contentions before the court below in the course of the trial. The court below will be at liberty to take an appropriate decision, if it is found at a later stage that the opinion of the expert has to be obtained with regard to the disputed signature. Crl.M.C is closed. A.K. Basheer Judge. an.