IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 Crl.Rev.Pet.No. 1307 of 2008() ------------------------------ CRA.218/2006 of II ADDL. SESSIONS COURT, PALAKKAD ST.4417/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, OTTAPPALAM .................... REVN. PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------------- HARI NARAYANAN, S/O.VASUDEVAN NAIR, VAZHAYIL HOUSE, VELLINEZHI, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE --------------------------------------------------------------------------------- 1. MOHANDAS.K.M., S/O.MUNDAN.K., KAIPANCHERY HOUSE, NEDUMPURA P.O., CHERUTHURUTHY, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMAPPU FOR R2 ADV. SRI.K.B.ARUNKUMAR FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 1307 OF 2008 ............................................ DATED THIS THE 11th DAY OF NOVEMBER, 2008 ORDER Revision petitioner is the accused and first respondent the complainant in S.T.4417 of 2002 on the file of Sessions Judge, Palakkad in Crl.A.218 of 2006. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Learned counsel appearing for revision petitioner and first respondent were heard. 3. Learned Magistrate and learned Sessions Judge relied on the evidence of PW1 and disbelieved the defence case that Ext.P1 cheque was issued as a blank cheque and that too, not to first respondent but to a group of money lenders. Learned counsel pointed out that it is the specific case of revision petitioner that Ext.P1 cheque was only signed by revision petitioner and was issued as a blank cheque and when first respondent as PW1 deposed that the cheque was written and signed by the revision petitioner in his presence, revision petitioner had filed CMP 7015 of 2005 at the stage of defence CRRP 1307/2008 2 evidence to send Ext.P1 cheque to an expert to compare the handwriting with the admitted handwriting of revision petitioner and learned Magistrate dismissed the application for the sole reason that petitioner admitted the signature in Ext.P1 and in the nature of the case, learned Magistrate should have sent the cheque to the expert. Learned counsel also pointed out that even though Ext.P4 notice was sent by first respondent through Advocate Haridas and Ext.D1 notice was sent on behalf of DW1 to whom petitioner allegedly issued a blank cheque through Advocate Prabha Sankar and when PW1 cross examined through which lawyer, he sent a notice, PW1 deposed that the notice was sent through Advocate Prabha Sankar and it probabilise the case of revision petitioner that Ext.P1 was given to DW1 as a blank cheque and this aspect was not properly appreciated by the courts below. It was pointed out that when cross examined, PW1 deposed that he is maintaining accounts and the accounts contain an entry with regard to the payment of the amount to revision petitioner and though it is a relevant document, it was not produced by first respondent and when revision petitioner filed an application for a direction to the complainant to produce the same, it was dismissed by learned Magistrate and in the CRRP 1307/2008 3 nature of the case, learned Magistrate should have allowed the said application. 4. Learned counsel appearing for first respondent argued that revision petitioner did not challenge these orders by filing a revision petition and they were not even challenged before the appellate court and therefore petitioner is not entitled to challenge the said orders in the revision petition. It was also argued that courts below appreciated the evidence in the proper perspective and exercising the revisional powers, this court is not to reappreciate the evidence and conviction is perfectly legal and correct. 5. When revision petitioner specifically contended that Ext.P1 cheque was not issued to first respondent and he only signed in the cheque and was given as a blank cheque, first respondent has a specific case that Ext.P1 cheque was issued by revision petitioner and revision petitioner in his own handwriting filled up Ext.P1 and thereafter signed it and handed over. In such circumstances, a factual matrix the question whether handwriting in Ext.P1 is that of revision petitioner is one of the relevant facts, which would decide the correctness of the claim of petitioner as well as first respondent. If handwriting in Ext.P1 CRRP 1307/2008 4 is that of the revision petitioner, necessarily the case of first respondent that it was issued by revision petitioner towards repayment of the amount can only be correct. On the other hand if the handwriting in Ext.P1 is not that of the revision petitioner, evidence of PW1 that Ext.P1 was written and signed by revision petitioner cannot be correct and if so case of the first respondent can only be rejected. It is more so because case of first respondent is that even though he has no personal knowledge of the residence of revision petitioner, when revision petitioner asked for a loan, first respondent was generous enough to pay that loan after approaching revision petitioner at his house and again was prepared to receive only the amount paid without interest and that too after a period of one year. In the light of these facts, learned Magistrate should have allowed the application filed by revision petitioner to send Ext.P1 cheque for comparison with his admitted handwriting. The dismissal of the application was illegal. So also when the very transaction was disputed and first respondent admitted that there are records in his possession maintained by him showing the payment of the amount to revision petitioner and he filed an application for a direction to first respondent to produce the document, at the CRRP 1307/2008 5 defence evidence stage, learned Magistrate should have allowed that application as it would have only helped the court to decide the dispute in a proper manner. 6. Revision petition is allowed. Conviction of petitioner is set aside. S.T.4417 of 2002 is remanded to Judicial First Class Magistrate, Ottapalam for fresh disposal in accordance with law. Magistrate is directed to send Ext.P1 cheque with the admitted handwriting of revision petitioner to be taken in open court to Forensic Science Laboratory for a report on the identity of the handwriting in Ext.P1. First respondent is also at liberty to produce any other admitted handwriting of revision petitioner during the relevant period, so as to avoid any further dispute. First respondent is also directed to produce the document sought to be produced by revision petitioner as per CMP 1173 of 2006. Magistrate to dispose the case in accordance with law. Parties are directed to appear before the Magistrate on 3.12.2008. Petitioner to meet the expenses for sending Ext.P1 to the expert. M.SASIDHARAN NAMBIAR, JUDGE lgk/-