IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 CRL.REV.PET.NO. 2748 OF 2007() ------------------------------ CC.368/2003 OF JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER(S): ACCUSED NO.1: --------------------------------------------------------- RAJU P.K., S/O. PARAMESWARAN NAIR, KALLIKKATTIL HOUSE, VAYALA KARA, ELAKKAD VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENT: ---------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.5 OF 2003 OF VAIKOM POLICE STATION). BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2748 of 2007 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of June, 2009 O R D E R -------------- This revision is in challenge of order dated 30.5.2007 in C.C. No.368 of 2003 of the court of learned Judicial First Class Magistrate, Vaikom. Petitioner, along with others faced trial for offences punishable under Sections 120B, 408, 418, 468 and 477 read with 34 IPC (for short, “the Code”). Petitioner was working as Secretary of a Co-operative Bank. Accused No.2 was a clerk of that Bank. P.W.2 had 7 Fixed Deposits with that Bank. Out of that, 4 Fixed Deposits were renewed after the maturity period making use of the originals. Remaining three deposits, it is alleged, were renewed with photocopies of the originals. It is the further allegation that petitioner and accused No.2 raised loan on the strength of the originals of those three Fixed Deposit Receipts and thereby caused loss to the Bank. P.W.2, it is alleged, had preferred a complaint (Ext.P2) to the President of the Bank based on which action was initiated. Prosecution examined six witnesses and marked the relevant documents. Exts.P14 and P15 series are the alleged forged documents. P.W.2 did not support the prosecution. He claimed that he had made an application for loan (on the strength of the Fixed Deposits). He was confronted by the Public CRL. R.P. No.2748 of 2007 -: 2 :- Prosecutor with his previous statement and Ext.P2 itself. He admitted that Ext.P2 contained his signature. He claimed that Exts.P14 and P15 series are signed by him and to explain the dissimilarity in the signatures in Exts.P2, and P14 and P15 series, he claimed that his signature differed from his earlier signature. After arguments were over the case was taken up for judgment. Learned magistrate then thought it necessary to direct P.W.1, the then Secretary of the Bank to produce the specimen signature card and application submitted by P.W.2 at the time of making the deposits. P.W.1 was also directed to produce the changed specimen signature card if any submitted by P.W.2. P.W.2 was directed to appear in court and furnish his bank account details. That order is under challenge in this revision. 2. Learned counsel for petitioner contended that what learned magistrate has done is virtually a further investigation to fill up the lacuna in the prosecution case. He placed reliance on the decision in Omprakash Shankarlal Sharma v. State of Maharashtra (1993 Cri. L.J. 3175) where it was held that court cannot in the course of judgment permit prosecution to reintroduce evidence to cover up obvious lacuna which is not permissible under Section 326(1) or Section 311 of the Code of Criminal Procedure or even Section 165 of the Evidence Act. CRL. R.P. No.2748 of 2007 -: 3 :- 3. Direction issued by the learned magistrate whether upheld or not will not, and cannot terminate the proceedings. If that be so, a revision from the impugned order is not maintainable. The Supreme Court in Sethuraman v. Rajamanickan (2009(2) Supreme 526) has taken that view. Therefore revision is not maintainable. But at this stage I do not think it necessary to convert the proceedings into one under Section 482 of the Code of Criminal Procedure since this Court can exercise power under that provision. Therefore I proceed to consider whether the order challenged is liable to be interfered with. 4. It is submitted by learned counsel and not disputed by Public Prosecutor also that the allegedly forged documents or, handwriting and signature(s) of P.W.2 and petitioner were not collected in the course of investigation and sent for expert opinion. P.W.2 was examined by the prosecution to say that he had not preferred any application or signed Exts.P14 and P15 series. He however owned up the same. He claimed that he was signing differently a few years back. It is therefore that learned magistrate directed documents to be produced and P.W.2 was directed to produce his specimen signatures. That is something which the investigating agency should have done in the course of investigation. The officer should have collected the specimen signatures of P.W2 and CRL. R.P. No.2748 of 2007 -: 4 :- such of the accused who allegedly forged the documents and got it examined by the expert along with the documents allegedly forged, if such evidence was necessary for the success of the investigation. If examination of the disputed signatures were necessary and that was not done, that is an inherent weakness in the prosecution case which cannot be filled up at this stage. l do not forget that it is within the power of the court to recall witness and/or to issue direction to produce documents under Section 165 of the Evidence Act but not to the extent of amounting to a detailed further investigation. On the facts and circumstances of the case, I do not think it necessary at this stage to exercise such power which will amount to filling up the lacuna in the prosecution case. In that view the order impugned cannot be sustained and is liable to be set aside. I do so. Resultantly, this revision is allowed. The order under challenge is set aside. Criminal Miscellaneous Application No.3425 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv