Dated this the 13th day of March, 2025 Petitioner is the sole accused in S.T.Nos.4481 of 2015 and 4482 of 2015, on the files of the Judicial First Class Magistrate Court-IV, Perumbavoor. The case originated from a complaint filed by the 2 nd respondent against the petitioner, alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act '). The allegation in the complaint is that, after borrowing an amount of Rs.15 lakhs from the 2 nd respondent, petitioner issued two cheques for Rs.7.5 lakhs each, towards discharge of that liability. The cheques, on presentation, were dishonoured for insufficiency of funds and in spite of issuance of statutory notice under Section 138(b) , petitioner did not clear the liability. Crl.M.C. No.8328 of 2023

2025:KER:23751 3

2. During the trial of the case, the complainant was examined and the cheques marked as Exts.P2 and P3. Thereafter, petitioner filed an application for sending the two cheques to the Central Forensic Laboratory for comparison of the age of ink used for making entries therein with the age of the ink in the petitioner's signature. The application was made in support of the petitioner's case that the signed blank cheques were entrusted with the 2 nd respondent way back in the year 2009 towards security for Rs.3 lakhs borrowed from him and although the amount was repaid, the cheques were not returned. Those cheques were misused and presented in the year 2015.

3. Learned Counsel for the petitioner contended that in order to prove the defence set up by his client, age of the ink in the signature and the entries have to Crl.M.C. No.8328 of 2023 2025:KER:23751 4 be determined. By rejecting the prayer, the court below shut out the best evidence available to the accused. Relying on the decision in Nagappa T. v. Y. R. Muralidhar [2008 (2) KHC 810], it is argued that, opportunity ought to be granted to the accused for adducing evidence in rebuttal of the presumption under Section 118(A) or 139 of the NI Act . Referring to the facts involved in that judgment, it is pointed out that the prayer therein also was to send the cheques for ascertaining the age of the ink used and the Apex Court had allowed the same.

4. Learned Counsel for the 2nd respondent submitted that the application is thoroughly misconceived and filed only with the intention of protracting the trial. No objection was raised by the petitioner when the cheques were marked and the Crl.M.C. No.8328 of 2023 2025:KER:23751 5 contention regarding difference in the age of the ink was raised only at the defence stage. According to the Counsel, no technology for ascertaining the age of the ink in the writings on paper has been developed so far and if the ink was manufactured prior to its actual use, even with technology, it will be impossible to ascertain the age with exactitude. In support of the argument, reliance is placed on the decision of the Madras High Court in Gopal S. v. D. Balachandran [2008 (2) KHC 205] and that of the Bombay High Court in Dnyaneshwar Eknath Gulhane v. Vinod Ramchandra Lokhande [2023 SCC OnLine Bom 2431]. It is further contended that insofar as the signature in the cheque is admitted, offence under Section 138 will be attracted even if the entries are made with a different ink. To buttress the argument, Crl.M.C. No.8328 of 2023 2025:KER:23751 6 the decision of the Apex Court in Ramesh K. v. K. Kothandaraman [2024 KHC 8090] is pressed into service.

5. The petitioner is seeking to obtain expert opinion on the premise that there is difference in the age of the ink used for making entries and for signing the cheque. Under similar circumstances, the Apex Court in Ramesh K (supra), has held that, once blank cheque leaf is signed and handed over by the accused, presumption under Section 139 of the NI Act is attracted and in such event, no purpose is served by ascertaining the age of the ink used. Although learned Counsel for the petitioner submitted that the aforementioned decision was rendered without taking note of the judgment in Nagappa T. (supra), the facts in the two cases being different, omission to take note Crl.M.C. No.8328 of 2023 2025:KER:23751 7 of the earlier judgment does not render the subsequent decision per incuriam. As regards the question whether any methodology is available for ascertaining the age of the ink used for writing, the following observation in Kambala Nageswara Rao v. Kesana Balakrishna [AIR 2014 AP 37] is apposite;

The same view was expressed by the Madras High Court in Gopal S (supra).

6. The above discussion leads this court to the definite conclusion that, sending the two cheques for ascertaining the age of the ink used for signing and making entries, will be an exercise in futility. Crl.M.C. No.8328 of 2023

2025:KER:23751 9 In the result, the Criminal Miscellaneous Case is dismissed.

V.G.ARUN JUDGE NB/13-3 Crl.M.C. No.8328 of 2023 2025:KER:23751 10 APPENDIX OF CRL.MC 8328/2023 PETITIONER ANNEXURES ANNEXURE 1 TRUE COPY OF THE PETITION CRI. MP 480/23 IN ST NO 4481/2015 DATED 29.3.2023 BEFORE THE JFCM -IV PERUMBAVOOR .

ANNEXURE A2 A COPY OF THE OBJECTION DTD. 20.5.2023 BEFORE THE JFCM -IV PERUMBAVOOR ANNEXURE A3 A CERTIFIED COPY OF THE ORDER OF JFCM IV PERUMBAVOOR IN C.M.P. 480/23 DATED 16.8.2023 TRUE COPY P.A. TO JUDGE