Charly John v. Kochukuru and State of Kerala (Crl.Rev.Pet.No. 683 of 2008; Crl.Rev.Pet.No. 2358 of 2008)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 Crl.Rev.Pet.No. 683 of 2008() ----------------------------- C.M.P.NO.35 OF 2008 IN C.C. NO. 267 OF 1996 BEFORE THE J.F.C.M., MUVATTUPUZHA REVN. PETITIONER: ACCUSED ------------------------- CHARLY JOHN, S/O.JOHN, MADATHUVILA KOMKARA, PATTOM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.S.KRISHNAKUMAR SMT.K.V.JAYANTHI RESPONDENTS: COMPLAINANT ------------------------ 1. KOCHUKURU, S/O.KURIAKOSE, ANACHIRA VEEDU, KEERAM PARAKARA, KEERAMPARA VILLAGE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR DR.GEORGE ABRAHAM FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/07/2008, ALONG WITH CRRP NO. 2358 OF 2008 THE COURT ON 28/07/2008 PASSED THE FOLLOWING: ## **V. RAMKUMAR, J.** *** * * * * * * * * * * * * * * * * * Crl.R.P. Nos. 683 of 2008 and Crl.R.P. No. 2358 of 2008 * * * * * * * * * * * * * * * * * * Dated: 28[th] July 2008** ## **ORDER** Crl.R.P. No. 683 of 2008 is filed by the accused and Crl.R.P. No. 2358 of 2008 is filed by the complainant in C.C. 267 of 1996 on the file of the J.F.C.M., Muvattupuzha. The above case arose out of a private complaint alleging the commission of an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (“the N.I. Act” for short) in respect of Ext.P1 cheque dated 31-8-1995 for a sum of Rs. 3,50,000/-. In these revisions, both the complainant as well as the accused challenge the order dated 29-01-2008 passed by the learned Magistrate allowing the application (CMP. No. 35 of 2008) filed by the accused for sending the cheque to the handwriting expert for detecting whether the signature and the other writings in the cheque were contemporaneously made. According to the accused, the learned Magistrate ought to have sent the cheque to the Forensic Science Laboratory, Thiruvananthapuram, as prayed for and not to a private expert. According to the complainant, the learned Magistrate should not have allowed the request of the accused to any extent whatsoever. 2. I heard Adv. Smt. K.V. Jayanthi, the learned counsel appearing for the accused and Adv. Sri. George Abraham, the there **Crl.R.P. Nos. 683 of 2008 and Crl.R.P. No. 2358 of 2008** -:2:- learned counsel appearing for the complainant. 3. Adv. Smt. K.V. Jayanthi, the learned counsel appearing for the accused made the following submissions before me in support of Crl.R.P. 683 of 2008:- Even though this Court in Crl. Appeal 990 of 1998 had set aside the acquittal of the accused on the ground of non-issuance of statutory notice, this Court was pleased to remand the case to the trial court after giving liberty to both sides to adduce evidence. The cheque in question was actually issued to the brother-in-law of the complainant as a blank cheque in connection with some other monetary transaction which was subsequently closed. The accused had laid his hands on the said cheque somehow or other and had misutilised the same with ulterior motives. A scientific examination of the cheque by an expert in the Forensic Science Laboratory will clearly show that the signature and the other writings in the cheque were not contemporaneously made. In Nagappa v. Muralidhar - 2008 (2) KHC 810 (SC) also the request was to send the cheque for ascertaining the age of the writings in the cheque and it was observed by the Apex Court that what should be the nature of evidence to prove the defence should ordinarily be left to the discretion of the accused. In Aravindakshan Nair v. Essen Bankers - 2007 (3) KLT 718 this Court in revision had directed the cheque to be forwarded to the handwriting expert for there **Crl.R.P. Nos. 683 of 2008 and Crl.R.P. No. 2358 of 2008** -:3:- comparison. The learned Magistrate was convinced that the cheque in question required examination by an expert. However, the learned Magistrate erred in not sending the cheque to the Forensic Science Laboratory but instead, asking the accused to furnish details of the private expert to whom the cheque could be forwarded for expert opinion. 4. Advocate Sri. George Abraham, the learned counsel appearing for the complainant on the other hand submitted that the cheque in question should not have been forwarded to any expert for comparison. 5. The facts leading to the filing of these revisions can be summarised as follows:- The amount mentioned in Ext.P1 cheque dated 31-8-1995 is Rs. 3,50,000/- which according to the complainant was borrowed by the accused from him. As against this, the case of the accused was that he had no transaction at all with the complainant and that the transaction which he had was with the brother-in-law of the complainant and the cheque in question was given as a signed blank cheque offered as a security and that transaction was subsequently closed. Initially on 4-8-1998 the trial court acquitted the accused on the ground of non-service of the statutory notice. The said acquittal was set aside by this Court in Crl. Appeal No. 990 of 1998 and the case was remanded to the trial court for fresh disposal after giving an opportunity to both there **Crl.R.P. Nos. 683 of 2008 and Crl.R.P. No. 2358 of 2008** -:4:- sides to adduce further evidence if they deemed necessary. Thereafter on 9-1-2008 the accused filed C.M.P. No. 35 of 2008 before the Magistrate seeking to send Ext.P1 cheque to the Forensic Science Laboratory for opinion as to whether the other writings on the cheque were of the same age as that of the signature. Noticing the fact that in many cases it was reported from the Forensic Science Laboratory, Thiruvananthapuram that there was no facility available to ascertain the age of the writings, the Magistrate as per the impugned order decided to send the cheque to a private expert for which purpose the accused was directed to furnish the details of a private expert who could redress his grievances. 6. It is true that in Nagappa's case the Apex Court allowed the cheque in question to be sent to the expert for determining the age of the signature and other writings on the cheque. But that decision has to be understood in the peculiar factual setting of that case. The fact that the signature occurring in Ext.P1 cheque is that of the accused is unequivocally admitted by him. His only contention is that the cheque was offered as a signed blank cheque by way of security to the brother - in-law of the complainant in connection with a transaction which he had with the complainant's brother-in-law. The accused would have it that he had absolutely no transaction at all with the complainant. His further case is that he had closed there **Crl.R.P. Nos. 683 of 2008 and Crl.R.P. No. 2358 of 2008** -:5:- the transaction which he had with the complainant's brother-inlaw. If so, he ought to have demanded back the signed blank cheque . He has no explanation to offer for not demanding the cheque back. That apart, if he had no transaction at all with the complainant, then as soon as he received the statutory notice issued by the complainant one would have expected him as a reasonable and prudent man to take strong exception to the conduct of the complainant's brother-in-law in dishonestly passing on the cheque to the complainant without the knowledge or consent of the accused. The instinctive conduct, in such a case, would be to lodge a complaint against the complainants' brother-in-law and to instruct the drawee bank to stop payment. One would have expected at least a lawyer notice to the complainant's brother-in-law for betraying the confidence which the accused had reposed in him while entrusting the signed blank cheque. But strangely enough, no such action has been forthcoming from the accused. There was also a suit filed by the complainant as O.S. No. 131 of 1998 before the Sub court, Muvattupuzha founded on the very same cheque. In that case also the accused herein who was the defendant had filed an application for sending the cheque to a handwriting expert for comparison of the handwriting and another application to send the cheque to the Forensic Science Laboratory for determining the age of the writings. The civil court had dismissed both the there **Crl.R.P. Nos. 683 of 2008 and Crl.R.P. No. 2358 of 2008** -:6:- applications. Aggrieved by the same the accused filed C.R.P. Nos. 793 and 2041 of 2002 before this Court. On 3-12-2002 this Court allowed in part the said revisions and consequently the cheque was sent to the Forensic Science Laboratory, Thiruvananthapuram along with specimen signatures and writings of the accused. That laboratory returned the cheque stating that sufficient specimen writings were not supplied for comparison. Thereupon, the Sub Court directed the accused herein to produce other contemporaneous writings and signatures. Instead of complying with the said request he filed Tr.P.C. 31 of 2003 before this Court for transfer of the said case from that Court. This Court dismissed his application on 11-22004. It is in the backdrop of these tell-tale circumstances that the request of the accused to send the cheque to the Forensic Science Laboratory has to be appreciated. 7. In Gopal S. Vs. D. Balachandran - 2008 (1) KLD 517 (Madras) a learned single Judge of the Madras High Court repelled an identical contention holding that age of the ink cannot be determined by an expert with scientific accuracy and that Sec. 20 of the N.I. Act will have no application to blank signed cheques issued as in this case. In a recent decision in Suryalakshmi Cottom Mills v. Rajvir Industries -2008 (1) KLD 172 (SC) the Apex Court has held that the act of filling up the blank signed cheque handed over to the complainant cannot by there **Crl.R.P. Nos. 683 of 2008 and Crl.R.P. No. 2358 of 2008** -:7:- itself amount to forgery. In L.C. Goyal v. Suresh Joshi - 1999 (3) SCC 376 it has been held that when the cheque was dishonored by the drawee bank due to insufficiency of funds and not on the ground that the signature on the cheque was not tallying with the specimen signatures of the drawer, the request made by the accused/drawer to send the cheque for obtaining the opinion of the handwriting expert was untenable. 8. It is true that in Aravindakshan Nair v. Essen Bankers - 2007 (3) KLT 718, this court directed the cheque in question to be forwarded to the handwriting expert for scientific opinion. But then , even the trial court in that case had entertained serious doubts about the authenticity of the signature in the cheque in question but still ventured to form an opinion by itself comparing the signatures by calling into aid Sec. 73 of the Evidence Act. 9. As observed by a learned Single Judge of this Court in Francis v. Pradeep- 2004 (2) KLT 1080 the easiest way to protract the proceedings in a prosecution under Sec. 138 of the N.I. Act and thereby stultify the spirit and object of the said provision will be request the cheque to be sent to the expert for scientific opinion. If the court were to favourably respond to such request, the intendment behind the insertion of Chapter XVII in the N. I. Act with effect from 1-4-1989 will be frustrated, if not defeated. It is not any and every request to forward the cheque there **Crl.R.P. Nos. 683 of 2008 and Crl.R.P. No. 2358 of 2008** -:8:- to the expert which can be blindly accepted by the Court. The Court has to be satisfied that the request is a bona fide one having regard to the facts and circumstances of the case. I am fortified in this connection by the decisions in Baby Thomas v. Paul -2007 (4) KLT 738 and Anil Raveendran v. A. Rama Pai - 2007 (3) KHC 192. The result of the foregoing discussion is that the learned Magistrate was not justified in allowing the request of the accused to send the cheque to an expert for ascertaining the age of the writings. The request was evidently to achieve endless protraction of the matter. Accordingly, C.M.P. 35 of 2008 filed by the accused before the court below shall stand dismissed. Resultantly, Crl.R.P. 2358 of 2008 shall stand allowed and Crl.R.P. 683 of 2008 shall stand dismissed. Dated this the 28th day of July 2008. **Sd/-V. RAMKUMAR, (JUDGE)** ani. /true copy/ P.A. to Judge`