IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 Crl.Rev.Pet.No. 2119 OF 2008() ------------------------------ AGAINST THE ORDER DATED 02/05/2008 IN CMP.341/2008 IN ST.1868/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER/PETITIONER/ACCUSED: ---------------------- THOMAS MATHEW, THAYYILSANKARAMANGALAM, OLASSA, KOTTAYAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT/RESPONDENT/COMPLAINANT & STATE: ---------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JOSE KURIAN, 7B, GOLDEN ENCLAVE, MUTTAMBALAM, KOTTAYAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: OR DER ON CRL.M.APPL. 6383 OF 2008 IN CRP 2119 OF 2008 DISMISSED 26.9.2008 SD/- M. SASIDHARAN NAMBIAR, JUDGE. Okb/- /TRUE COPY/ P.A. TO JUDGE OR DER ON CRL.M.APPL.6383 OF 2008 IN CRL.R.P.2119 OF 2008 DISMISSED 26.9.2008 SD/- M. SASIDHARAN NAMBIAR, JUDGE. Okb/- /TRUE COPY/ P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2119 OF 2008 ------------------------------------------ Dated this the 26th day of September, 2008 O R D E R Revision petitioner is the accused in S.T. 1868 of 2007. First respondent is the complainant. C.M.P.341 of 2008 was filed by the petitioner to send the dishonoured cheque to an expert to get an opinion on the identity of the handwriting seen in the cheque as well as the age of the writing. Learned Magistrate dismissed the petition as per order dated 2.5.2008. the order is challenged in this petition filed under section 397 and 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner and learned public prosecutor were heard. Though notice was served on first respondent, he did not appear. 3. Learned counsel argued that though in view of the objections raised by first respondent, identity of the handwriting in the dishonoured cheque may not be very relevant, question whether the cheque was signed on the date it purported to be and it was written on the same date is relevant and an expert by CRRP2119/08 2 conducting diffusion test could definitely give an opinion with regard to the age of the writing and signature and learned Magistrate was not justified in dismissing the application. Even according to the petitioner, the petition was moved before evidence was started. The question of evidence on the side of the defence arises only after closing the prosecution evidence. When evidence of complainant was not recorded and petitioner was not questioned under section 313 of Cr.P.C., question of leading evidence by the accused does not arise. Therefore the petition is premature. Petitioner is entitled to move the application before the learned Magistrate, if he is so advised, when he is called upon to adduce evidence. The dismissal of the petition will not preclude petitioner from filing the application or the learned Magistrate from considering the application at that stage. Revision petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-