Anil Babu v. Raj Kumar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HON'BLE MR. JUSTICE K.RAMAKRISHNAN** ## **FRIDAY, THE 22ND DAY OF FEBRUARY 2013/3RD PHALGUNA 1934** ## **Crl.MC.No. 4763 of 2008 (C)** **--------------------------------------[C.M.P. NO. 8638/2008 IN S.T. NO.3815/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHITTUR]** **..........** ## **PETITIONER/ACCUSED:** **-----------------------------------** **ANIL BABU, AGED 40 YEARS, S/O.KOCHUKUTTAN, THEKKEMADATHIL, ARTHINKAL P.O, CHERTHALA.** **BY ADVS.SRI.B.PRAMOD, SRI.GEORGE MATHEWS.** ## **RESPONDENTS/COMPLAINANT & STATE:** **------------------------------------------------------------** **1. RAJ KUMAR, S/O.GOWRI SANKAR, PRABHA NIVAS, KAVARATHODU, NANNIODE P.O, CHITTUR, PALAKKAD.** ## **2. STATE OF KERALA, REPRESENTED BY** **THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SRI.K.MOHANAKANNAN, SMT.A.R.PRAVITHA. R2 BY PUBLIC PROSECUTOR SRI.LIJU.V. STEPHEN.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.4763/2008-C:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **ANNEXURE A: COPY OF THE COMPLAINT IN S.T.NO.3815/2005 ON THE FILE OF JFCM, CHITTUR.** - **ANNEXURE B: COPY OF THE DEPOSITION OF THE R.1. IN THE ABOVE CASE. ANNEXURE C: COPY OF THE STATEMENT OF THE PETITIONER RECORDED U/S. 313 OF CR.P.C. IN THE ABOVE CASE.** - **ANNEXURE D: COPY OF THE CRL.M.P. NO. 1682/2007 FILED BY THE PETITIONER IN THE ABOVE CASE.** - **ANNEXURE E: COPY OF THE HANDWRITING EXPERT'S REPORT DTD. 29/08/2008. ANNEXURE F: COPY OF THE C.M.P. NO. 8638/2008 FILED BY THE PETITIONER IN THE ABOVE CASE.** - **ANNEXURE G: CERTIFIED COPY OF ORDER DTD. 28/11/2008 ON ANNEXURE F PETITION.** - **ANNEXURE H: COPY OF THE PRINTOUT OF THE EXCERPTS TAKEN FROM THE OFFICIAL WEB SITE OF CFSL.** - **ANNEXURE I: COPY OF THE PRINTOUT OF THE EXCERPTS TAKEN FROM THE OFFICIAL WEB SITE OF UPFSL.** - **ANNEXURE J: COPY OF THE PINTOUT OF THE EXCERPTS FROM THE OFFICIAL WEB SITE OF ASSAM FSL.** - **ANNEXURE K: COPY OF THE PINTOUT OF THE EXCERPTS FROM THE OFFICIAL WEB SITE OF CFSL.** - **ANNEXURE L: COPY OF THE PINTOUT OF THE EXCERPTS FROM THE OFFICIAL WEB SITE OF ASSAM DNL INTELLIGENCE LTD.,** ## **RESPONDENTS ANNEXURES: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Prv.** ## **K. RAMAKRISHNAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No.4763 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of February, 2013 ## J U D G M E N T This is an application filed by the accused in S.T.No.3815/2005 on the file of the Judicial First Class Magistrate Court, Chittoor to quash Annexure-G order under Section 482 of Criminal Procedure Code (herein after called the 'Code'). 2. The first respondent herein filed a complaint against the petitioner under Section 138 of Negotiable Instrument Act (herein after called the 'Act'), alleging that the accused had issued the cheque involved in the case dated 22.05.2008, for ` 1,00,000/- (Rupees One lakh only) in discharge of his liability, which when presented was dishonoured and inspite of notice issued, he had not paid the amount and thereby, he had committed the offence punishable under Section 138 of the Negotiable Instruments Act (herein after called the 'Act'). After the evidence of the complainant, the accused was questioned under Section 313 _W.P.(C) No.4763_ _**/** 2008_ 2 of Criminal Procedure Code and he had a case that the blank signed cheque handed over to one Thomas Joseph at Kuttanadu in the year 1997, in connection with different transaction was subjected to forgery and the present prosecution has been launched. In order to prove this fact, he had filed an application before the Magistrate Court, for ascertaining the hand writing, signature and also the age of the signature and the writings in the cheque, and the same was sent to the expert suggested by the petitioner and Annexure-E report was obtained, wherein, the expert was opined that the disputed signature and the standard signature provided was of the same person but there is no machinery available in India to ascertain the age of the writing. It is thereafter he filed criminal M.P No.8638/2008, for sending Ext.P1 cheque in the lower court for another expert to find out the age of the signature and also ascertain the authorship of the writings in the cheque, and that the petition was partly allowed by the learned Magistrate vide Annexure-G order, for the purpose of getting expert opinion, _W.P.(C) No.4763_ _**/** 2008_ 3 regarding the writings in the cheque alone, and that is being questioned now. 3. Learned counsel for the petitioner submitted that in the Central Forensic Laboratory, Delhi, there is facility available for this purpose and he relied on Annexure-H and J, some computer print outs for the purpose, and he had also relied on the decision reported in [ **2008 (5) S.C.C 633, T.Nagappa v. Y.R. Muralidhar]** for this proposition. 4. Learned counsel for the respondent argued that since there is no machinery available, even as per the expert to whom the cheque was sent, to ascertain the age of the signature, the attempt is only to prolong the matter and so, the lower court had considered this aspect and rightly allowed the application in part. 5. It is an admitted fact that the complaint was filed by the first respondent herein under section 138 of the Act. It is also an admitted fact that the petitioner earlier filed an application for sending the disputed cheque for expert opinion for ascertaining the authorship of the writings and _W.P.(C) No.4763_ _**/** 2008_ 4 also the age of the signature and that was allowed. It is also an admitted fact that the cheque was sent to the expert of his choice. But after examining the document, the expert submitted Annexure-E report, wherein, he had stated that the author of the signature is the same person, but it was mentioned in the report that there is no machinery available or facilities available in India to ascertain the age of the writings, in a document. It is thereafter that the petitioner has filed the present application. 6. In the decision reported in **T.Nagappa v. Y.R. Muralidhar** (supra), the question that was considered was whether the accused had got a right to file an application to prove his case under Section 243 of Criminal Procedure Code by sending the cheque for expert opinion regarding the age of the signature and authorship of writing when that was disputed. That was a case where the Magistrate had dismissed the application for sending the disputed cheque, to get an expert opinion, and the Hon’ble Supreme Court found that it is an invaluable right available to the accused to _W.P.(C) No.4763_ _**/** 2008_ 5 defend his case and denying that right, will cause prejudice to him and merely because a wrong section was quoted, is not a ground for rejecting the prayer. It is also a case where the period at which the signature was put also in dispute and in that circumstances, the Hon’ble Supreme Court has allowed the application. But there was no occasion for the Hon’ble Supreme Court to consider at that time whether there was any standardised methodology available for ascertaining the age of the writings in a document, but only considered the right of the accused to apply for sending the disputed document for expert opinion to prove his case. 7. The learned counsel for the first respondent relied on the decision reported in [ **2010 KHC 74, 78; Jagadeesan v. N.Ayyasamy and Another]** , where a similar question has arisen before the Hon’ble Madras High Court and the Hon'ble Madras High Court has considered the question and also made enquiries with the Director of the Forensic Department of that State and ascertained the facts from him to the effect that there is no facility available in _W.P.(C) No.4763_ _**/** 2008_ 6 India to ascertain the age of the writings in a document, and allowed the revision, setting aside the order of the magistrate, allowing the application for sending the document to ascertain the age of the writings. Further it is also observed in the same decision that even if any opinion has been given by the expert, it is only an expert opinion under Section 45 of the Evidence Act. Court need not rely on the same for the purpose of coming to any definite conclusion regarding the point in dispute. The learned Magistrate has considered these aspects on the basis of the report submitted by the handwriting expert who submitted Annexure-E report, that no such facilities available in India, to ascertain the age of the writings and allowed the application in part rightly to consider the request of the petitioner to ascertain the authorship of the writings in the cheque alone. Further it is also mentioned in the order itself that such a prayer if it is meant for prolonging the matter, then the request need not be considered as well. The annexures produced by the petitioner as Annexures-H and J _W.P.(C) No.4763_ _**/** 2008_ 7 as computer print outs are not sufficient to come to the conclusion that such a facility is available in the Forensic Laboratory for sending the document for that purpose. There is no illegality committed by the court below in passing the order which warrants this court to interfere by invoking section 482 of Criminal Procedure Code, and the petition is liable to be dismissed. It is made clear that this will not be a bar for the petitioner to adduce further evidence, if any, on this aspect to prove his case. With the above observation, the petition is dismissed. Parties are directed to appear before the court below on 27.03.2013. Office is directed to communicate the order to the court below at the earliest. _Sd/-_ **K.RAMAKRISHNAN, (Judge)** _// True Copy //_ _P.A. To Judge_ ss