IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 Crl.MC.No. 239 of 2011() ----------------------------------- CRL.MP.1037/2010 IN ST.53/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II, KARUNAGAPPALLY. .................... PETITIONER/ACCUSED ---------------------------------- SHAJI, MARUTHOORKIZHAKKATHIL, THOTTINU VADAKKU, CHAVARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADV. SRI.K.SUBASH CHANDRA BOSE, SRI.K.J.JOMSON. RESPONDENTS/STATE/DEFACTO COMPLAINANT ------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHAMSUDEEN, CHEPPALLY VEETTIL, THOTTINU VADAKKU, CHAVARA MURI, CHAVARA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT, PIN-691 583. R1 BY PUBLIC PROSECUTOR MR.K.J. MOHAMMED ANZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.239 of 2011 --------------------------------------- Dated this 03rd day of February, 2011 ORDER Petitioner is accused in S.T.No.53 of 2010 of the court of learned Judicial First Class Magistrate-II, Karunagappally facing trial for offence punishable under Sec.138 of the Negotiable Instruments Act (for short, "the Act”). He denied the transaction and due execution of the instrument. He claimed that respondent No.2 was his employee in his shop, requested `.25,000/- as advance salary at the time of marriage of his daughter and since he had no money with him, he gave signed blank cheque to the second respondent to be given to a jewellery shop. That cheque was misused. Respondent No.2 was examined as PW1. He stated that petitioner executed cheque in his presence. Thereon, petitioner filed Crl.M.P.No.1037 of 2010 to send the cheque to the expert for opinion. That application was dismissed by the learned Magistrate by Annexure-4, order stating that there is no need to forward the cheque to the expert for opinion since signature is admitted and signed blank cheque given authority for the payee to fill up the same for the amount due. Learned counsel contended that in the absence of malafides, request to Crl.M.C.No.239 of 2011 -: 2 :- send the cheque to the expert ought to have been allowed. Sec.20 of the Act is applicable only to a holder in due course and not to the payee under the cheque. Various other contentions are also raised. 2. Learned counsel after arguing the matter for some time has requested permission to withdraw this petition without prejudice to the right of petitioner to challenge correctness of the impugned order in case an appeal is preferred against judgment of the learned Magistrate. I have heard learned Public Prosecutor also. Having regard to the circumstances stated the request is allowed. Resultantly this criminal miscellaneous case is dismissed as withdrawn without prejudice to the right of petitioner to challenge correctness of the impugned order in the appeal that may be preferred against judgment of the trial court. Learned Magistrate is directed to dispose of the case untrammelled by any observation contained in the impugned order having regard to the contentions raised by petitioner. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P. A to Judge