B. REGHUNATHA PAI v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 27TH DAY OF JANUARY 2014/7TH MAGHA, 1935** ## **Crl.MC.No. 5957 of 2013 ()** ## **-------------------------------------** **PETITIONER(S)/PETITIONER/ACCUSED IN C.C.NO.46/2011 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD:** **--------------------------------------------------------------------------** ## **B. REGHUNATHA PAI,AGED 50** **S/O.LATE B.SARVOTHAMA PAI, RESIDING AT PAI GARDEN ANIL KUMBLA ROAD, KUMBLA P.O., KOIPADY VILLAGE KASARAGOD TALUK, KASARAGOD DISTRICT.** ## **BY ADV. SRI.VARGHESE C.KURIAKOSE** **COMPLAINANT(S)/RESPONDENTS/STATE/COMPLAINANT IN C.C.NO.46/2011 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD:** **--------------------------------------------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM** ## **2. K.V.SIVARAMAN,, AGED 60 YEARS** **S/O.LATE VEERAN, RESIDING AT KVS NIVAS, BEACH ROAD KUMBALA P.O., KOIPADY VILLAGE, KASARAGOD TALUK KASARAGOD DISTRICT.** **R2 BY ADV. SRI.T.SETHUMADHAVAN (SR.) R2 BY ADV. SRI.PUSHPARAJAN KODOTH R2 BY ADV. SRI.K.JAYESH MOHANKUMAR R1 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE P** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 5957 of 2013 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **ANNEXURE I : TRUE PHOTOSTAT COPY OF THE PRIVATE COMPLAINT LODGED BY THE 2ND RESPONDENT** ## **ANNEXURE 2 : TRUE PHOTOSTAT COPY OF EXPERT REPORT DATED 29.04.2013** **ANNEXURE 3 : TRUE PHOTOSTAT COPY OF APPLICATION AS C.M.P.NO.449/2011 1N C.C.NO.46/2011 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTII, KASARAGOD** **ANNEXURE 4 : TRUE PHOTOSTAT COPY OF APPLICATION AS C.M.P.NO.450/2013 IN C.C.NO.46/2011 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD** **ANNEXURE 5 : TRUE PHOTOSTAT COPY OF OBJECTION IN C.M.P.NO.449/2013 IN C.C.NO.46/2011 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD** **ANNEXURE 6 : TRUE PHOTOSTAT COPY OF OBJECTION IN C.M.P.NO.450/2013 IN C.C.NO.46/2011 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTII, KASARAGOD** **ANNEXURE 7 : CERTIFIED COPY OF THE COMMON ORDER IN C.M.P NO.449/2013 AND C.M.P.NO.450/2013 IN C.C.NO.46/2011 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II,KASARAGOD** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL** ## **Bb** **//True Copy//** **PA to Judge** ## **K. Ramakrishnan, J. ============================== Crl.M.C.No.5957 of 2013 ============================== Dated this, the 27[th] day of January, 2014.** ## **O R D E R** This is an application filed by the accused in C.C.No.46/11 on the files of the Judicial First Class Magistrate Court-II Kasargod to quash the common order in Crl.M.P.No.449/13 & 450/13 under Section 482 of Code of Criminal Procedure. 2. It is alleged in the petition that the case was taken on file on the basis of a private complaint filed by the second respondent against the petitioner alleging offence under Section 138 of the Negotiable Instruments Act (herein after call the Act). The case of the complainant was that the present petitioner issued Ext.P1 cheque in discharge of the legally enforceable debt due from him to the complainant and when the same was presented for collection, it was dishonored and in spite of notice issued the petitioner had not paid the amount and thereby he had committed the offence punishable under Section 138 of the Act. The case of the petitioner was that there was Ext.D5 agreement between the petitioner and the second respondent regarding the transaction and the cheque was not issued in discharge of any liability. The Crl.M.C.No.5957 of 2013 : 2 : genuineness of Ext.D5 agreement was questioned by the second respondent. So, the petitioner filed C.M.P.No.901/11 for sending Ext.D5 agreement for expert opinion regarding the disputed signature of the complainant seen in that document and that application was allowed and Annexure-2 report was obtained negativing the case of the petitioner. Thereafter, the petitioner filed C.M.P.No.449/13 for re-opening the case for sending Ext.D5 agreement for further examination by an expert in Central Forensic Laboratory, Hyderabad and for that purpose filed Crl.M.P.450/13 to re-open the case. The learned magistrate after hearing both sides dismissed both the applications by Annexure-7 common order. The same is being challenged before this court by filing this petition. 3. Heard the Counsel for the petitioner second respondent and the learned Public Prosecutor. 4. Counsel for the petitioner submitted that the court below failed to note that expert opinion is not a final word and it is only a opinion evidence and the petitioner is entitled to adduce evidence against the same as well and if such an evidence is adduced, the court has to consider that also before coming to the conclusion as to whether the expert opinion can Crl.M.C.No.5957 of 2013 : 3 : be relied on or not for deciding the case. So, even if the court found that the document need not be sent to Central Forensic Laboratory, Hyderabad, it should have allowed the application for re-opening the case for giving an opportunity to the petitioner to adduce further evidence against the expert opinion. The counsel also submitted that if for any reason this court found that the prayer for sending the documents to Central Forensic Laboratory, Hyderabad is not permissible, then he may be given an opportunity to adduce evidence by examining the expert who gave the report and also adduce further evidence to prove the execution of Ext.D5 document by methods known to law. 5. The Counsel for the second respondent submitted that the attempt of the petitioner is only to prolong the proceedings. According to him, the lower court was perfectly justified in dismissing the applications. 6. It is an admitted fact that the case was taken on file on the basis of a private complaint filed by the second respondent on the basis of Ext.P1 cheque alleging that it was issued in discharge of a legally enforceable debt and also alleging commission of an offence under Section 138 of the Crl.M.C.No.5957 of 2013 : 4 : Act. The petitioner relies on Ext.D5 agreement alleged to have been executed between himself and the complaint regarding the transaction and he relies on the document to prove that Ext.P1 cheque was not issued in discharge of any legally enforceable debt but for some other purpose. The execution of Ext.D5 agreement was denied by the complainant. In order to prove the signature in Ext.D5 was that of the complainant the petitioner filed an application to send Ext.D5 for expert opinion and that application was allowed and Annexure-2 report was obtained which is not favourable to the petitioner. After getting the report, it appears that the learned magistrate closed the evidence and posted the case for hearing. It is under those circumstances that the petitioner has filed the application to re-open the case for further evidence, and also to send Ext.D5 agreement for getting further opinion to the Central Forensic Laboratory, Hyderabad. 7. There is no necessity to send Ext.D5 for further expert opinion as claimed by the petitioner and that is likely to take time as well. But at the same time, it is settled law that expert opinion is only an opinion in evidence and it is not conclusive and if there is other evidence to disprove the Crl.M.C.No.5957 of 2013 : 5 : opinion formed by the expert adduced on the side of the parties, then court can evaluate the same and independently come to a conclusion regarding the point in dispute between the parties, over looking the expert opinion. This was so held by this court in the decision reported in **Rajan v. T.K.Madusoodanakurup and Another 2013 (2) KHC 477.** The decision mentioned in grounds of the petition namely; **Chellappan v. State of Kerala 2013 KHC 55, Gopal Mohan K. v. S.Govindan Nair 2011(2) KHC 920** also did not state otherwise. In those cases also it has been observed that unless there are reasons to suspect the opinion or there are other grounds to show that the expert opinion cannot be accepted, it will not be proper for any court to side line the expert opinion as opinion evidence carrying little value. The same view has been reiterated in the decision reported in **Sivanesan @ Siva v. State of Kerala 2013 KHC 2795.** So if the person aggrieved by the expert opinion wants to adduce further evidence on this aspect, then the court should not stand in the way of adducing further evidence on the part of that party to prove his case. Even if the court found that it is not necessary to send the document for further expert opinion, Crl.M.C.No.5957 of 2013 : 6 : then court should have at least allowed the party to adduce further evidence to disprove the expert opinion by adducing evidence known to law and for that purpose, the court ought to have allowed the application to re-open evidence. While I am not interfering with the order dismissing the application for sending the document to further expert opinion to Central Forensic Laboratory, Hyderabad, I feel that it is necessary to allow the application to re-open evidence for giving an opportunity to the petitioner to adduce evidence to prove Ext.D5 in the manner known to law. For that purpose, the order passed by the court below dismissing the application to re-open the case alone is set aside and that application is allowed and the matter is sent back to the court below with the direction to magistrate to give an opportunity to the petitioner herein to adduce evidence to prove Ext.D5 and also bring materials against the opinion formed by the expert in Annexure-2 to have different view on that aspect. Thereafter disposed the case in accordance with the law. The parties are directed to appear before the court below on 17.02.2014. The learned magistrate is directed to dispose of the case as expeditiously as possible at any date within 2 months from the Crl.M.C.No.5957 of 2013 : 7 : date of receipt of the order or from 17.02.2014 whichever is later. Office is directed to communicate this order to the court below at the earliest. With the above direction and observation, the petition is disposed of. Sd/- **K.Ramakrishnan, Judge.** Bb _[True copy]_ _P.A to Judge_