Beena Reji v. Varghese George and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 23RD DAY OF MARCH 2020 / 3RD CHAITHRA, 1942** ## **Crl.MC.No.2547 OF 2019(G)** **AGAINST THE ORDER IN ST 23/2017 OF THE CHIEF JUDICIAL MAGISTRATE PATHANAMTHITTA** ## **PETITIONER/PETITIONER/ACCUSED:** **BEENA REJI, AGED 42 YEARS W/O. REJI, MANNIL VEEDU, KUMBANADU P.O, KOIPURAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA.** **BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB** ## **RESPONDENTS/RESPONDENT/COMPLAINANT & STATE:** **1 VARGHESE GEORGE, S/O. GEORGE, AMAYIL PUTHENPURAYIL VEEDU, KADAPRA P.O, KUMBANADU, KOIPURAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT-689 547 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031** **R1 BY ADV. SRI.C.S.AJITH PRAKASH R1 BY ADV. SRI.T.K.DEVARAJAN R1 BY ADV. SMT.T.N.SREEKALA R1 BY ADV. SRI.PAUL C THOMAS R1 BY ADV. SRI.A.TJOSE R1 BY ADV. SRI.FRANKLIN ARACKAL R1 BY ADV. SRI.M.B.SOORI R2 BY SRI C.K.PRASAD, PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.03.2020, THE COURT ON 23.03.2020 PASSED THE FOLLOWING:** **Crl.MC.No.2547 OF 2019(G)** **2** ## **R. NARAYANA PISHARADI, J** **-----------------------------------------Crl.M.C.No.2547 of 2019** **------------------------------------------** Dated this the 23[rd] day of March, 2020 ## **O R D E R** The petitioner is the accused in the case S.T.No.23/2017 on the file of the Court of the Chief Judicial Magistrate, Pathanamthitta. 2. The aforesaid case is instituted upon the complaint filed by the first respondent against the petitioner for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. When the case reached the stage of defence evidence, the petitioner filed an application as Crl.M.P No.836/2019 in the trial court for sending the cheque to the Forensic Science Laboratory, Thiruvananthapuram to obtain opinion regarding the handwriting of the entries in the cheque. The request made by the petitioner was for comparison of the handwriting of the entries in the cheque with admitted handwriting of the complainant. 4. The first respondent filed objection to the aforesaid application contending that the application filed by the petitioner is not legally maintainable. **Crl.MC.No.2547 OF 2019(G)** **3** 5. As per Annexure-A6 order, the learned Magistrate dismissed the application filed by the petitioner for sending the cheque for the opinion of the expert. The legality and the propriety of the aforesaid order are challenged by the accused in this petition filed under Section 482 Cr.P.C. 6. Heard the learned counsel for the petitioner and also the first respondent. 7. The case of the first respondent is that the petitioner borrowed an amount of Rs.8,50,000/- from him on 24.10.2016 and in discharge of that liability, on the same day, she issued him the cheque dated 24.12.2016. 8. The petitioner/accused has no case that the cheque involved in the case does not bear her signature. The dispute is only with regard to the other entries in the cheque. 9. The specific plea of the petitioner is that the first respondent/complainant is the author of the entries in the cheque. A suggestion made to the above effect in the cross-examination was denied by the complainant. At the same time, the complainant has no case that the accused herself filled up the cheque. The learned **Crl.MC.No.2547 OF 2019(G)** **4** ## Magistrate has stated in the impugned order as follows: “Concededly, the request of the accused is to sent Ext.P1 for expert opinion regarding the authorship of the entries in Ext.P1cheque. According to the applicant, PW1, who had written the entries in Ext.P1 cheque, has denied the suggestion that the entries were made in his handwriting. At this juncture, I feel that it will be apposite to have a look at the version given by PW1 regarding the aforesaid aspect. His version in the cross-examination (Page No.3) clearly indicates that the entries in the cheques were made by a person, who had accompanied the accused. He has specifically denied the defence suggestion that the entries in Ext.P1 cheque were made by him. Significantly, the version that the entries in Ext.P1 cheque were made by the person, who had accompanied the accused was not denied during the cross-examination of PW1.” ## 10. It is in order to prove the specific plea of the petitioner that the complainant is the author of the entries in the cheque that the petitioner has made the request for sending the cheque for opinion of handwriting expert. The accused has admitted the signature in the cheque. The cheque, which has been issued to her from her bank to operate her account, was in the possession of the complainant and he produced it. Then, it is immaterial who has actually filled up the cheque. ## 11. In **Bir Singh v. Mukesh Kumar : AIR 2019 SC 2446** , the **Crl.MC.No.2547 OF 2019(G)** **5** Apex Court has held as follows: "A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Section 20, Section 87 and Section 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. ..... Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. ..... In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant- complainant, it may reasonably be presumed that the cheque was filled in by the appellant- **Crl.MC.No.2547 OF 2019(G)** **6** complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration". 12. When the accused admits the signature in the cheque, it is immaterial whether some other person had made the entries in the cheque or filled it up. Even if some other person had filled up the cheque, it does not in any way affect the validity of the cheque. 13. It is for the accused to prove the circumstances under which her signed blank cheque happened to be in the possession of the complainant. In order to prove such circumstances, it is not necessary to send the cheque for obtaining the opinion of any handwriting expert. 14. Learned counsel for the petitioner relied upon the decisions of the Supreme Court in **Kalyani Bhaskar v. M.S.Sampoornan : (2007) 2 SCC 258** , and **Nagappa v. Muralidhar : AIR 2008 SC 2010** , to impress upon this Court that adducing evidence in support of the defence is a valuable right and denial of that right would mean denial of fair trial. In **Kalyani Bhaskar** (supra), the Apex Court allowed the application filed by the accused for sending the cheque for the opinion of the handwriting expert, holding that the Magistrate should have granted such a request unless he thinks that the object of **Crl.MC.No.2547 OF 2019(G)** **7** the accused is vexation or delaying the criminal proceedings. This decision, therefore, is an authority for the proposition that, if the intention of the accused is to protract the proceedings, the request for sending the cheque for expert opinion can be rejected. In **Nagappa** (supra) also, the Apex Court allowed the prayer made by the accused for sending the cheque for expert opinion. In this decision also, the Apex Court has held that, the Court being the master of the proceedings, must determine as to whether the application filed by the accused is bona fide or not or whether thereby he intends to bring on record a relevant material. It has also been held that, there cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial. ## 15. In **Francis v. Pradeep : 2004 (2) KLT 1080** , this Court had observed as follows: "The easiest way to protract proceedings under Section 138 of the N.I. Act and thus stultify the spirit and object of the provisions of Section 138 of the N.I. Act is to request that the cheque be sent to the expert. The soul of the provision will be lost if there is no expeditious enforcement. On account of pressure of work at the Forensic Science Laboratory, it is common knowledge that the expert will not be able to give the report within a period of three to four years. Convenient protraction can be achieved by requesting that the cheque be forwarded to **Crl.MC.No.2547 OF 2019(G)** **8** the expert for examination. It is for the Trial Court to alertly consider the acceptability of such request and ensure that the cheque is forwarded to the expert only if satisfactory reasons are available". 16. The law is trite that any and every request to forward the cheque to the expert need not be blindly and meekly accepted by the learned Magistrate (See **Baby Thomas v. Paul : 2007 (4) KLT 738** and **Anil Ravindran v. Rama Pai : 2007 (3) KHC 192** ). The court has to be satisfied that the request is a bona fide one having regard to the facts and circumstances of the case (See **Kochukuru v. State of Kerala : 2008 (3) KHC 451** ). 17. In the instant case, having regard to the circumstances mentioned earlier, there can be no doubt with regard to the fact that the request made by the petitioner/accused for sending the cheque for expert opinion is not bona fide and that the intention of the accused is only to protract the proceedings in the case. By obtaining the opinion of a handwriting expert with regard to the entries in the cheque, the petitioner does not intend to bring on record any relevant material. Therefore, I have no hesitation to hold that the trial court was perfectly justified in dismissing the application filed by the accused for sending the cheque to the Forensic Science Laboratory for expert opinion with regard to the handwriting of the entries in the **Crl.MC.No.2547 OF 2019(G)** **9** cheque. 18. In the aforesaid circumstances, I find no merit in this petition. It is liable to be dismissed. Consequently, the petition is dismissed. **Sd/- R. NARAYANA PISHARADI JUDGE** lsn **Crl.MC.No.2547 OF 2019(G)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **A TRUE COPY OF THE LEGAL NOTICE MADE BY THE 1ST RESPONDENT'S LAWYER TO THE PETITIONER DATED 4.1.2017.** **ANNEXURE A2 A TRUE COPY OF THE REPLY NOTICE DATED 12.1.2017 MADE BY THE PETITIONER'S LAWYER TO THE 1ST RESPONDENT'S LAWYER.** - **ANNEXURE A3 A TRUE COPY OF THE COMPLAINT FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA BY THE 1ST RESPONDENT DATED 2.2.2017.** **ANNEXURE A4 A TRUE COPY OF THE APPLICATION AS CRL. MP. NO. 836/2019 FILED BY THE PETITIONER BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA DATED 13.2.2019.** **ANNEXURE A5 A TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA DATED 19.2.2019.** - **ANNEXURE A6 A TRUE COPY OF THE ORDER DATED 12.03.2019 IN CRL.M.P NO. 836/2019 IN ST NO. 23/2017 PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA.** ## **RESPONDENTS EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** **LSN**