IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 Crl.MC.No. 4623 of 2003() ------------------------- AGAINST THE ORDER DATED 19/07/2003 IN CMP.5308/2003 IN CC.456/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... PETITIONER(S): ACCUSED ------------------------------------ P.D.JEROM, S/O.SINGER DEVASSY AGED 42 YEARS, KUNNATHANGADI DESOM VELUTHUR, THRISSUR. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENT(S): COMPLAINANTS ------------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. E.M.SHAHUL HAMEED S/O.ABDUL KHADER, AGED 42 YEARS PUTHENPURAYIL HOUSE, CRUMANAYOOR P.O. CHAVAKKAD TALUK, THRISSUR. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/08/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Crl.M.C.No.4623 of 2003 --------------------------------------------- Dated this the 18th day of August, 2010 O R D E R The question involved in this Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure by the accused in a Complaint Case under Section 138 of the Negotiable Instruments Act is whether even before appearance of the accused before Court, he could make an application for conducting a test identification parade to disprove the case of the complainant that the complainant and the accused are close friends and known to each other. 2. The second respondent filed a complaint against the petitioner before the court of the Judicial Magistrate of the First Class, Chavakkad under Section 138 of the Negotiable Instruments Act. In the complaint, the complainant alleged that he is a friend of the accused and that they are very close to each other. For business purposes, the accused borrowed a sum of Rupees 2 lakhs from the complainant. A promissory note was executed by the Crl.M.C.No.4623/2003 2 accused in favour of the complainant. When the complainant demanded to repay the amount, the accused issued a cheque for Rs.2,25,000/- in favour of the complainant. On presentation of the cheque, it was dishonoured on the ground of 'insufficiency of funds' in the account of the accused. 3. In the memorandum of Criminal Miscellaneous Case, the petitioner/accused stated that he is a retail vegetable vendor. He borrowed a sum of Rs.30,000/- from one Dinarajan. The accused issued a cheque to Dinarajan at the time of borrowing the amount. The accused repaid the amount with interest to Dinarajan. However, the cheque was not returned to the accused. After a few months, the accused received a lawyer notice issued on behalf of the complainant stating that the accused had issued a cheque for Rs.2,25,000/- in discharge of the liability to the complainant. A reply notice was sent denying the issue of the cheque to the complainant. The accused has not even seen the complainant. He does not know the complainant. They are not friends as alleged by the complainant. The accused met Dinarajan and explained the Crl.M.C.No.4623/2003 3 matters. Dinarajan promised that all the matters will be settled. However, to the surprise of the accused, he received summons issued by the court of the Judicial Magistrate of the First class. 4. The petitioner appeared through counsel and filed the application for conducting a test identification parade. It was submitted that the complainant would not be able to identify the accused, if such test identification parade is conducted. In such an event, it would be clear that the case of the complainant is false. 5. The court below dismissed the application by the order impugned in this Criminal Miscellaneous Case. The Court below held that the court is not expected to allow the application at this stage. Usually the test identification parade is being conducted during investigation. The court also held that a test identification parade is not the way to disprove the case put forward by the complainant. 6. The learned counsel for the petitioner submitted that Crl.M.C.No.4623/2003 4 under Section 9 of the Indian Evidence Act, the fact that the complainant was not able to identify the accused in the test identification parade would be relevant for the final adjudication of the case. He also submitted that the application was made by the accused at the appropriate stage and if he appears before the court, the very purpose of the test identification parade would be lost. 7. The learned Public Prosecutor supported the order passed by the court below. He submitted that Section 9 of the Evidence Act is not attracted in the present case so as to justify conducting a test identification parade. 8. It would be appropriate to extract Section 9 and the definition of 'fact' and 'facts in issue' occurring in Section 3 of the Indian Evidence Act. “Fact : Fact means and includes - (1) any thing, state of things, or relation of things, capable of being perceived by the Crl.M.C.No.4623/2003 5 senses ; (2) any mental condition of which any person is conscious. Facts in issue – The expression “facts in issue” means and includes – any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. Explanation - Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the the fact to be asserted or denied in the answer to such issue, is a fact in issue. 9. Facts necessary to explain or introduce relevant facts – Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact Crl.M.C.No.4623/2003 6 in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.” 9. Facts in issue means and includes a fact which either by itself or in connection with other facts would lead to the existence, non existence, nature or extent of any right, liability or disability, asserted or denied. In the present complaint under Section 138 of the Negotiable Instruments Act, the relevant fact to be established is that the cheque drawn by the accused in discharge of any debt or liability was dishonoured. The fact to be established in order to constitute a fact in issue must be one which leads to the right, liability or disability. The right or liability under Section 138 of the Negotiable Instruments Act is the right to claim that such a cheque was issued in favour of the complainant and the liability is the liability Crl.M.C.No.4623/2003 7 under the provisions of 138 and 142 of the Negotiable Instruments Act. The question whether the complainant and the accused are friends, whether they are known to each other or whether they are close with each other are not facts which would lead to the existence, non existence, nature or extent of any right, liability or disability, asserted or denied. Therefore, it would not be a fact in issue. If it is not a fact in issue, evidently, Section 9 would not apply. The facts sought to be established by the test identification parade in the present case would not constitute facts necessary to explain or introduce a fact in issue or relevant fact. It does not support or rebut an inference suggested by a fact in issue or relevant fact. The expression "which establish the identity of anything or person whose identity is relevant" occurring in Section 9 of the Evidence Act is not attracted in the case since the "identity" and the "acquaintance" are distinct and different. The accused says that he does not know the complainant and that they do not know each other. Even if it is proved, that does not affect the identity as contemplated in Section 9. The expression “the relation of parties by whom any such fact was transacted” would also not be attracted by any fact brought Crl.M.C.No.4623/2003 8 out in the test identification parade sought to be made. I do not think that the court below has committed any error in dismissing the application. Accordingly, the Criminal Miscellaneous Case is dismissed. K.T.SANKARAN, JUDGE csl