IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 Crl.MC.No. 1366 of 2009(E) ------------------------- AGAINST THE JUDGEMENT/ORDER IN CC.344/2000 Dated 07/03/2009 CC.343/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM .................... PETITIONER / COMPLAINANT ------------------------------------------ K.JAYAKUMAR, KRISHNA SADANAM, ARUMANOOR, POOVAR.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.M.HARISHARMA RESPONDENTS / ACCUSED & STATE ---------------------------------------------------- 1. NAGAMMA.M., SEA FACE, THOTTATHUVILAKOM,AVADUTHURA, KOVALAM.P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 REPRESENTED BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. =================== Crl.M.C. No. 1366 of 2009-E =================== Dated this the 24th day of June, 2009. O R D E R Petitioner is the complainant and first respondent is the accused in C.C.No.344/2000 on the file of Judicial First Class Magistrate Court, Thiruvananthapuram. Learned Magistrate took cognizance of the offence under Section 138 of Negotiable Instruments Act on the complaint filed by the petitioner. First respondent originally filed Crl.M.P.No. 5406/2005, an application to send the dishonoured cheques to an expert, to compare the signature seen therein with the documents produced therein. That petition was allowed. Petitioner challenged that order before this court in Crl.M.C.No.5644/2002. When that Crl.M.C. was heard, learned Counsel appearing for the first respondent submitted that in view of the report of the expert submitted in O.S.No.62/1998, after examination of the cheques finding that it is forged, the cheques and the documents are not to Crl.M.C.No.1366/2009-E -2- be forwarded to the expert. Hence under Annexure A1 order the submission of the learned Counsel for the first respondent was recorded and Crl.M.C. was closed. Petitioner thereafter filed Crl.M.P.No.7818/2007, another application to send the dishonoured cheques to an expert to compare it with the admitted signatures. That petition was allowed. First respondent challenged that order before this Court in Crl.M.C.No.1357/2008. This court as per Annexure A2 order set aside that order and directed the Magistrate to send only the admitted standard writings for comparison. It was also observed that the best signature to be compared is the standard signature furnished by the first respondent to the bank, when the account was opened. Thereafter under Annexure A3 order, the Magistrate directed to forward the dishonoured cheques to an expert along with the documents mentioned in Crl.M.P.No.5406/2005. That order is challenged in this petition filed under Section 482 of Code of Criminal Procedure. Crl.M.C.No.1366/2009-E -3- 2. Learned Counsel appearing for the petitioner was heard. Though notice was served on the first respondent as well as through the Counsel appearing for her before the trial court, she did not turn up. 3. The argument of the learned Counsel is that when the order allowing Crl.M.P.No.5406/2005 was challenged before this court, as seen from Annexure A1 order, first respondent submitted that the cheque need not be sent to an expert along with the documents as directed by the Magistrate and therefore the learned Magistrate was not justified in later forwarding the dishonoured cheque along with the same documents. Even though the learned Counsel appearing for first respondent in Crl.M.C.No. 5644/2002 submitted that in view of the report submitted by the expert in O.S.No.62/1998, the documents are not to be forwarded to an expert, in Crl.M.P.No.7818/2007, the Magistrate finding that it is necessary to forward the dishonoured cheque to an expert with the admitted Crl.M.C.No.1366/2009-E -4- handwriting and signatures, allowed that application. Under Annexure A2 order this court also agreed with the learned Magistrate that the dishonoured cheque is to be sent to the expert. But this court interfered with the order as it was found that the disputed document is to be compared with the admitted documents and the documents forwarded are not the admitted documents. 4. Even though this court in unambiguous terms stated that the best signature which could be compared with the dishonoured cheques is the signature furnished by the first respondent to the bank for the purpose of opening the account, it was not made available to the learned Magistrate. As a result it could not be forwarded. Neither the complainant nor the accused made available any other material, except what were already available before the Magistrate. In such circumstances, learned Magistrate directed under Annexure A2 order to forward the dishonoured cheques to be compared with the admitted Crl.M.C.No.1366/2009-E -5- signatures available in the court. As the signatures in the documents mentioned in Crl.M.P. No.5406/2005 were not disputed, learned Magistrate forwarded it. I do not find any reason to interfere with the order. If the petitioner has a case that some other documents, which contains the signature of the first respondent are available, petitioner is at liberty to make them available before the Magistrate and seek an order to forward them also to the same expert. M.SASIDHARAN NAMBIAR JUDGE dkr