IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 Crl.MC.No. 2585 of 2007() ------------------------- AGAINST THE ORDER DATED 01/06/2007 IN CC.177/02,CMP.1076/07 IN CC.176/2002 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... PETITIONER(S): ------------------------- P.M. PRAMOD, S/O.LATE P.M.N.KURUP, AGED 39 YEARS, PUTHIYAMADATHIL HOUSE, IRINGAL AMSOM DESOM, AYANIKKADU P.O., KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.P.R.SREEJITH RESPONDENT(S): ------------------------------ 1. N.V. PARAMESWARAN, S/O.RAJAN, AGED 35 YEARS, DARSHANA, KOTTOOLI AMSOM DESOM, KOZHIKODE TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 BY PUBLIC PROSECUTOR SRI. S.U.NAZAR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2585 of 2007 ------------------------------------------------- Dated this the 24th day of October, 2008 ORDER The petitioner is the accused in two prosecutions under Sec.138 of the Negotiable Instruments Act which are being tried jointly before the learned Chief Judicial Magistrate, Kozhikode. The complainant alleged in those prosecutions that the accused had executed a demand promissory note for Rs.8 lakhs and to discharge that liability has issued two cheques in question each for Rs.4 lakhs. Signatures in the cheques are not disputed. But the petitioner appears to have a very specific and definite case which has been raised by him long prior to even the date of presentation of the cheques. It is his case that he was sharing the same office and office table along with the complainant herein and the complainant had fraudulently come into possession of the signed black cheques. He was Crl.M.C. No. 2585 of 2007 -: 2 :- misutilising the same now to stake totally untenable claims. 2. In the course of trial, the petitioner wanted the demand promissory note to discharge the liability under which the cheques in the case were allegedly issued to be sent to the expert. That petition stands dismissed by the impugned order. The petitioner claims to be aggrieved by that order. 3. The learned counsel for the petitioner submits that, in the peculiar facts and circumstances of this case and in the interests of justice, his prayer ought to have been allowed. It is his consistent case that the demand promissory note has not been executed by him. The same deserves to be probed into. It is true that a civil case has been instituted claiming relief on the basis of the demand promissory note. But it is the specific contention of the petitioner even in that case that the signature is not his. He had made necessary application in the civil case to get the cheque examined by an expert. But on account of reasons beyond the control of the petitioner, that examination could not be conducted in that case. That case was disposed of ex parte. The ex parte disposal was challenged. The proceedings have not attained finality even now. Two C.M. Appeals are pending before the District Court, Kozhikode with respect to that suit. The learned counsel for the 1st Crl.M.C. No. 2585 of 2007 -: 3 :- respondent contends that those appeals are not maintainable at all before that forum. 4. Be that as it may, the crucial question for consideration of this Court is whether the prayer to get the demand promissory note examined by an expert for opinion on the authenticity of the signature and handwriting of the petitioner is valid and justifiable considering the nature of the contentions in those prosecutions. 5. I have no hesitation to agree that the interests of justice will be better served if that crucial input is also available. It is true that the said document is not produced before the criminal court. But the very specific case is that the cheques have been issued for the discharge of the said liability. That is the demand promissory note. Whether such liability exists or not is certainly most germane to the dispute raised in the prosecution. The accused has the burden to rebut the presumption under Sec.139 of the N.I. Act and therefore his request for forwarding the demand promissory note is virtually conceding to him an opportunity to rebut the presumption under Sec.139 of the N.I. Act. 6. The learned counsel for the 1st respondent submits that the matter is being dragged on unnecessarily. The petitioner Crl.M.C. No. 2585 of 2007 -: 4 :- was given an opportunity to get the cheque examined by an expert in the civil suit. But that opportunity was not availed of. The petitioner is only highlighting the hypothetical difficulties and prejudices only to purchase time. In these circumstances, the jurisdiction under Sec.482 Cr.P.C. may not be invoked, submits the learned counsel for the 1st respondent. 7. The learned counsel for the petitioner, on the contrary, submits that to prove his bona fides the petitioner shall undertake that in the event of a conviction being entered against him in these cases, the petitioner shall be liable to pay compensation including interest, if any, payable for his laches as per the dictum in Sathyan v. Yousu (2006 (4) KLT 923) at any reasonable rate as directed by the court. The petitioner can be directed to pay the principal amount, cost and interest as compensation under Sec.357(3) Cr.P.C. if the complainant succeeds in the prosecution, submits the learned counsel for the petitioner. 8. Taking all the relevant circumstances, including the fair stand taken by the learned counsel for the petitioner that interest payable can be directed to be paid as compensation in the event of the case ending in conviction, I am satisfied that this Crl.M.C. can be allowed. Crl.M.C. No. 2585 of 2007 -: 5 :- 9. In the result: (a) This Crl.M.C. is allowed with the above observations. (b) The impugned order is set aside. (c) The learned Magistrate shall forward a letter of request to the civil court and get the original of the demand promissory note and shall take necessary steps to forward the same to the expert for opinion about the authenticity of the handwriting and signature in the said demand promissory note. (d) There shall also be a direction that the learned CJM must dispose of these cases which have been pending from 2002 as expeditiously as possible. Immediately after the requirement is over, the demand promissory note shall be sent back to the civil court by the learned CJM. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 2585 of 2007 -: 6 :-