IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 Crl.MC.No. 3441 of 2011() ------------------------- AGAINST THE ORDER DATED 29/09/2011 IN CMP 2902/2011 IN ST.85/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI. .................... PETITIONER(S): ACCUSED: ----------------------------------------- SHAJAHAN, S/O. MUSTHAFA, KORMATH HOUSE, NARUKARA, MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): COMPLAINANT AND STATE: ---------------------------------------------------------------------- 1. SIVASANKARAN NAIR, S/O.PARAMESWARAN NAIR, 'PANJASADANAN', VALLUVANGAD SOUTH.P.O., PANDIKKAD, MALAPPURAM DISTRICT-676 521. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. R1 BY ADVS. SRI.K.M.JAMALUDHEEN, SMT.LATHA PRABHAKARAN. R2 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.3441/2011 APPENDIX PETITIONER'S ANNEXURES: ANX.A TRUE COPY OF THE REPLY NOTICE DATED 26-8-2009 ISSUED ON BEHALF OF THE PETITIONER. ANX.B TRUE COPY OF THE 313 CODE OF CRIMINAL PROCEDURE STATEMENT WAS GIVEN BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II(FOREST OFFENCES), MANJERI IN S.T. NO.85/2009. ANX.C TRUE CERTIFIED COPY OF THE APPLICATION DATED 26-8-2011 TO RE-OPEN THE CASE FILED BY THE PETITIONER IN S.T. NO.85/2009 THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II (FOREST OFFENCES), MANJERI. ANX.D TRUE CERTIFIED COPY OF THE APPLICATION DATED 26-8-2011 TO SEND THE CHEQUE FOR EXPERT OPINION FILED BY THE PETITIONER IN S.T. NO.85/2009 THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II(FOREST OFFENCES), MANJERI. ANX.E TRUE COPY OF THE COUNTER STATEMENT DATED 12-9-2011 FILED BY THE PETITIONER IN ANNEXURE-C APPLICATION. ANX.F TRUE COPY OF THE COUNTER STATEMENT DATED 12-9-2011 FILED BY THE PETITIONER IN ANX.-D APPLICATION. ANX.G CERTIFIED COPY OF THE ORDER DATED 29-09-2011 IN CMP 2902/2011 IN ST. NO.85/2009 THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II (FOREST OFFENCES) MANJERI. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.3441 of 2011 ---------------------------------------------------- Dated this the 23rd day of November, 2011 Order This petition is filed by the accused in a case filed under Section 138 of the N.I.Act. The cheque in question was for Rs.2 lakhs. The cheque is dated 15.7.2009. The first respondent who is the complainant to whom it was issued for discharge of a legally enforceable debt or liability presented the same for encashment. It was bounced due to insufficiency of funds. Statutory notice was sent. Reply was sent to the statutory notice disputing the claim. Thereupon, complaint was filed. 2. Before the court below, affidavit in lieu of the chief examination was filed by the complainant on 7.2.2011. He was cross-examined by the learned counsel for the accused on 19.2.2011. No other evidence was adduced on the side of the complainant. The accused was questioned under Section 313 Cr.P.C. on 1.8.2011. Thereafter, Annexure C petition was filed under Section 311 Cr.P.C. to reopen the case. Annexure D petition was also filed with a request to send the cheque in Crl.M.C.3441/11 2 question for expert opinion to ascertain the age of the handwriting in the cheque. That petition was opposed by the complainant contending that the complaint was filed in the year 2009 and that the cross-examination of P.W.1 was completed on 19.2.2011. It is further argued on behalf of the complainant that the accused successfully dragged on the proceedings for more than six months and only thereafter he could be examined under Section 313. It is still thereafter the petition was filed for seeking expert opinion. The learned counsel for the respondent- complainant would submit that in fact the case was argued by both sides and it was posted for judgment on 7.10.2011. But unfortunately the judgment was not pronounced by the learned Magistrate on that date. This petition was filed on 10.10.2011. 3. The fact that the cheque was signed by the petitioner is not disputed. It is also not disputed that the cheque was handed over to a particular person, even if it is not the complainant. According to the petitioner, the signed blank cheque leaves were entrusted to his driver so as to enable him to obtain loan from one Zakeer and the cheque so entrusted to the driver was misused. The learned counsel for the respondent submits that, Crl.M.C.3441/11 3 that driver has not been examined nor was Zakeer examined by the accused. According to the learned counsel, ever so many such stories can be invented by the accused in a case facing prosecution under Section 138 of the N.I.Act. It is not necessary for the complainant to prove in whose handwriting the cheque was written. It is also not possible to determine the age of the handwriting. Even if the handwriting in the cheque is not of the accused but of a different person, that alone may not come to the rescue of the accused. 4. This argument is countered by the learned counsel for the accused/petitioner pointing out that the accused has every right to adduce defence evidence and that should not be shut out by the complainant, as otherwise there would be denial of fair trial. The learned counsel for the petitioner would submit that the petitioner can exercise his right of defence only at the defence stage and he gets the right to get the documents sent for opinion of the expert only at that stage and hence the finding entered by the court below and the argument advanced by the learned counsel for the petitioner that it is only a delaying tactics cannot be accepted. Crl.M.C.3441/11 4 5. It is pointed out by the learned counsel for the 1st respondent that though the allegation made by the accused was that he had handed over the cheque to his driver and it was not returned, no notice was sent to him. Similarly, though it was stated that cheque was handed over to one Zakeer, not only that he was not examined and no action was taken against him. Therefore, simply stating that the cheque was written/filled up subsequently on a blank cheque leaf issued earlier, the accused cannot get the case delayed by filing an application at the belated stage. It is for the complainant to prove this case. The court may have to enter findings with regard to the same on the basis of the evidence adduced and other circumstances available in this case. I do not find any reason to set aside Annexure G order passed by the learned Magistrate. This Crl.M.C. must fail and the same will stand dismissed. However, this order will not preclude the petitioner to raise all the grounds before the appellate court if occasion arises to file appeal. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.3441/11 5 Crl.M.C.3441/11 6