IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 Crl.MC.No. 10 of 2005() ----------------------- AGAINST THE ORDER DATED 14/12/2004 ON CMP. 3891 /2004 IN CC.520/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... PETITIONER/PETITIONER/: ACCUSED ---------------------------------------- V.ABDU, S/O.VAKKEYIL ABU HAJI, VAKKEYIL HOUSE, KIZHAKKUMPADAM, MELATTOOR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTSRESPONDENT/COMPLAINANT & STATE: ------------------------------------------------------------ 1. M.K.NARAYANA PILLAI, S/O.MADHAVAN NAIR, NISHA BHAVAN MELATOOR, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY SRI.SAJU.S.A FOR R1 PUBLIC PROSECUTOR SHRI P.A.SALIM FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31/07/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NOS.35/05 & 7851/05 IN CRL.M.C.10/05 DISMISSED 31.7.08 SD/- M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.10 OF 2005 ----------------------------------------------------- DATED THIS THE 31st DAY OF JULY, 2008 O R D E R Petitioner herein is the accused in C.C.No.520/03 on the file of the Court of the Judicial First Class Magistrate-II, Perinthalmanna and the first respondent is the complainant. This case was filed by the first respondent against the petitioner alleging the offence punishable under Section 138 of the Negotiable Instruments Act. The prayer in this petition is to quash the order dated 14.12.2004 in C.M.P.No.3891/04 of the learned Magistrate and to give direction to the learned Magistrate to send the cheque in question for the expert opinion from the Forensic Science Laboratory, Thiruvananthapuram. 2. Heard the learned counsel appearing for the petitioner and the first respondent and also the learned Public Prosecutor. 3. The petitioner has produced Annexure A, the true coy of the reply notice dated 9.7.2003 sent by him on receipt of the notice from the first respondent in this petition. The case of the petitioner is that during 1991 he had borrowed an amount of Rs.10,000/- from the first respondent and even after the payment of the entire amount with interest, that cheque has not been returned. After about 10 years, the first respondent has filed a complaint after making some entries and CRL.M.C.No.10/05 -2- putting the date of the cheque as 18.6.2003 and hence the petitioner has filed C.M.P.No.3891/04 before the trial court with the prayer to send the cheque for comparison by an expert to prove the age of the entries in the disputed cheque and whether it was written on 18.6.2003 or about 10 years back as put forward by the defence. This petition is seen filed by the petitioner who is the accused before the trial court after the evidence on behalf of the complainant was closed and when the case was posted for defence evidence. The learned Magistrate dismissed that petition as per the impugned order, Annexure C with the finding that sending of the cheque for comparison by an expert is not necessary in this case as the petitioner is not denying his signature in Exhibit P1 and whoever may be the person by whom the entries in Exhibit P1 are written, is not at all material while deciding the guilt of the accused in a proceeding arising under Section 138 of the Negotiable Instruments Act on the basis of the admission of execution of Exhibit P1 cheque. Further, the case relates to the year 2003 and the petition is filed only to protract the matter. 4. The point in dispute in this case is covered by the decision reported in T.Nagappa v. Y.R.Muralidhar (2008 (2) Crimes 219 (SC)), wherein it is held that when a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118 (a) or 139 of the NI Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. CRL.M.C.No.10/05 -3- Considering the facts and circumstances of this case, I find that the petitioner herein is entitled to rebut the case of the 1st respondent herein who is the complainant before the lower court and the prayer made by the petitioner before the learned Magistrate in C.M.P.3891/04 should have been allowed for the examination of Exhibit P1 cheque and to get opinion of the handwriting expert. But the learned Magistrate has deprived the petitioner herein of such an opportunity to rebut the presumption. This position has been fairly admitted by the learned counsel appearing for the first respondent who has produced the relevant ruling before this Court. In the result, this petition is allowed and the impugned order, Annexure C is set aside and the learned Magistrate is directed to send Exhibit P1 cheque for the expert opinion before the Forensic Science Laboratory, Thiruvananthapuram and to dispose of the case in accordance with law. M.C.HARI RANI, JUDGE. dsn