IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 Crl.MC.No. 2479 of 2010() ------------------------------------ ST.62/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, CHENGANACHERRY .................... PETITIONER/ACCUSED --------------------------------- SHAMNAZ, S/O.MUHAMMEDALI, PUTHIYEDATHU, KANGAZHA P.O., PATHANADU, KOTTAYAM. BY ADV. SRI.RAJ MOHAN R.PILLAI, SMT.D.MINI RAJAN. RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------- 1. SHANAVAS KHAN, S/O.MOIDEEN RAWTHER, PAZHUKKAKULATHU PUTHEN VEEDU, KANGAZHA P.O., KOTTAYAM DISTRICT. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.2479 of 2010 ==================================== Dated this the 06th day of April, 2011 O R D E R Petitioner is accused in S.T. No.62 of 2009 of the court of learned Judicial First Class Magistrate-II, Changanacherry which is a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. According to the first respondent, petitioner received Rupees Three lakhs from him and issued three cheques for Rupees One lakh each, all dated 14.12.2007 and drawn on the South Indian Bank Ltd., Pathanadu Branch. Those cheques were dishonoured and after complying with formalities prosecution was initiated against petitioner. Petitioner contended that he has not issued any cheque and that first respondent has forged the cheques. Petitioner filed C.M.P. No.175 of 2010 contending that he has not written the cheques in question and requesting to send the same to the Forensic Science Laboratory for expert opinion. Learned Magistrate dismissed the petition by Annexure-3, order observing that petitioner did not produce any handwriting of his, prior to the case and that sending the cheques to the FSL is a time consuming process. That order is under CRL.M.C. No.2479 of 2010 -: 2 :- challenge. Learned counsel submitted that having regard to the contentions raised by petitioner in the court below and in the light of decision in Nagappa v. Muralidhar (2008 [3] KLT 258 (SC), learned Magistrate ought to have sent the cheques to the FSL for opinion. It is submitted that a similar petition was filed by the first respondent (to send the cheques for Expert opinion) but that petition was also dismissed by the learned Magistrate. 2. Learned counsel for first respondent contended that there is no reason to interfere with Annexure-3, order and the attempt of petitioner is to prolong trial of the case. 3. True, on the facts of the case the Supreme Court observed that having regard to the burden of proof, in appropriate circumstances request to send the cheques for Expert opinion is to be entertained. But it is not as if in and every case whenever there is a request to send the cheque for Expert opinion the court is obliged to do so. I am persuaded to think that it depends on the facts and circumstances of each case. I have been referred to Annexure-4, copy of deposition of the first respondent. In cross-examination the first respondent as P.W.1 stated that the cheques were issued to him the same day. Petitioner wrote the date, signed it and gave the same to him. CRL.M.C. No.2479 of 2010 -: 3 :- The name (obviously of the payee) was written later. He admitted that there is difference in ink used in the cheques. But he denied that the signatures are different and that signatures are not of petitioner. 4. On going through Annexure-4, deposition of the first respondent it is seen that he did not claim that petitioner wrote the name of payee in the cheques. At least it is not so stated by him in cross-examination. In such a situation sending the cheques to the FSL for opinion was not required. As such I do not find reason to interfere. Learned Magistrate had to decide the case on the evidence on record. Criminal Miscellaneous Case is dismissed. THOMAS P. JOSEPH, JUDGE. vsv