High Court of KeralaSingle Judge2008-10-28Criminal Revision Petition disposed of; order s...

Dr. Dominic Thomas v. Jayankutty T and State of Kerala

Case / Petition Number:CRRP 2650/2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M. Sasidharan Nambiar
Judgment Date: 2008-10-28
Court Decision / Holding: The High Court set aside the Magistrate’s order and allowed CMP 3230/2008 in CC 151/2007. The Court directed forwarding of Ext. P1 cheque along with the petitioner’s admitted writings to the Forensic Science Laboratory at the petitioner’s expense for handwriting comparison. The Criminal Revision Petition is disposed of with directions to proceed as stated.
Final Disposition: Criminal Revision Petition disposed of; order set aside; CMP 3230/2008 allowed; direct to forward Ext.P1 and admitted writings to FSL; proceed with handwriting analysis at petitioner’s expense.

Parties to the Case

Appellants / Petitioners

Dr. Dominic Thomas, Nelluvilil, College Junction, Erattupetta

Respondents

Jayankutty T, S/O. Ramakrishnan, Thekkumpurath House, Pathapuzha P.O., Erattupetta
State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Rajeev

Counsels for Respondents

• Sri Shaji Thomas Porkkattill
• Sri Binu Paul
• Sri T.V. Vinu
• Public Prosecutor Sri C.M. Nazer

Case Synopsis & Summary

This is a Criminal Revision Petition under section 397 read with section 401 CrPC brought by Dr. Dominic Thomas challenging the order of the Judicial First Class Magistrate, Erattupetta, dismissing CMP 3230/2008 in CC 151/2007. The CMP sought to send Ext. P1 cheque to the Forensic Science Laboratory to compare handwriting of the date on the dishonoured cheque with the petitioner’s admitted handwriting. The petitioner contends that the court cannot dictate what evidence the accused may lead, and that he should be allowed to prove his case; relying on the Supreme Court decision in Nagappa v. Y.R. Muralidhar and Kerala decisions Baby Thomas v. Paul and Moideen v. Johny, he argues that the trial should permit the handwriting comparison as part of his defence, within a reasonable time. The respondent contends that the date in Ext. P1 is disputed but the cheque’s other writings are admitted; permitting the examination would protract the trial unnecessarily, and the petitioner can prove his case by other means. The Magistrate had rejected the application to avoid protraction. The High Court sets aside the order, allowing CMP 3230/2008; directs forwarding of the cheque along with the petitioner’s admitted writings to FSL at his expense. The Criminal Revision Petition is disposed of accordingly, emphasizing the accused’s right to place relevant material before the court and the limited time for such steps.

Provisions of Law Cited

Section 397 read with Section 401 of CrPCSection 243(2) CrPC

Legal Doctrines & Maxims

Accused has right to prove his defence and may obtain court assistance for relevant material (Nagappa principle)
Implied authority to fill up the date in a cheque and that absence of date need not constitute material alteration
Courts should avoid unnecessary protraction of trial and ensure timely investigation of defence evidence

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the court cannot pre-emptively decide what evidence may be admitted and that handwriting examination of Ext.P1 is a crucial step to establish his defence. Relying on Nagappa v. Y.R. Muralidhar and earlier Kerala decisions (Baby Thomas v. Paul; Moideen v. Johny), he argues that denying the application would unnecessarily restrict his ability to prove the true date and authenticity of the cheque, especially where the date is disputed but other writings are admitted. He asserts there is a substantial factual dispute about whether the date was written by him and that the proposed forensic test would not alter the cheque’s ultimate validity but would illuminate whether the date was added subsequently.

Contentions of Respondents

The respondents contend that the disputed date is a material issue but the rest of Ext. P1 is admitted; allowing the handwriting test would unnecessarily protract the trial, and the accused can substantiate his defence by other evidence. The Magistrate’s reasoning—while acknowledging admitted writings—was to avoid delaying proceedings. They rely on the principle that the court may determine bona fides of such applications, but emphasize that the defence should not be unreasonably extended or proferred to unduly delay the proceedings; the State counsel argues for a measured approach to avoid protraction while ensuring the accused can present material facts affecting the case.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
T. Nagappa v. Y.R. Muralidhar	2008(3) Supreme Today 196	Positive	Used to support the proposition that the accused should be allowed to lead evidence and that the court cannot unduly restrict access to relevant material; the application should be determined bona fide and within reasonable time.
Baby Thomas v. Paul	2007(4) KLT 738	Positive	Cited to show that the absence or dispute over the date in the cheque does not automatically amount to material alteration and there is implied authority to fill up dates; supports the admissibility of evidence to prove the defence.
Moideen v. Johny	2007(2) KLT SN 15	Positive	Similar rationale that missing or disputed date does not necessarily invalidate the cheque and that the accused should be allowed defence evidence reasonable within the trial.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 Crl.Rev.Pet.No. 2650 of 2008() -----------------------------AGAINST THE ORDER DATED 09/07/2008 IN CMP 3230/2008 IN CC.151/2007 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------- DR.DOMINIC THOMAS, NELLUVELIL, COLLEGE JUNCTION, ERATTUPETTA. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENTS/PLAINTIFF: ------------------------------------------------- 1. JAYANKUTTY.T, S/O.RAMAKRISHNAN, THEKKUMPURATH HOUSE, PATHAPUZHA P.O. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SHAJI THOMAS PORKKATTIL FOR R1 SRI.BINU PAUL FOR R1 SRI.T.V.VINU FOR R1 BY PUBLIC PROSECUTOR SRI.C.M.NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL.8018/2008 IN CRL.R.P.NO.2650/2008 28.10.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge ## **M.SASIDHARAN NAMBIAR,J.** =========================== Crl.R.P. NO. 2650 OF 2008 =========================== Dated this the 28th day of October,2008 ## ORDER This revision petition is filed under section 397 read with section 401 of Code of Criminal Procedure challenging the order passed by Judicial First Class Magistrate, Erattupetta dismissing CMP 3230/2008 an application filed by the petitioner at the stage of defence evidence to sent Ext.P1 cheque to Forensic Science Laboratory for comparing handwriting of the date in dishonoured cheque with the admitted handwriting of the petitioner. Learned Magistrate dismissed the application on the ground that petitioner admitted his signature and other writings in the cheque and only writing showing the date of the cheque is disputed and if petition is allowed it will protract the case and petitioner can prove his case by other means and petition was dismissed. 2. Learned counsel appearing for petitioner CRRP 2650/2008 2 relying on the decision of the Apex Court in ## **T.Nagappa v. Y.R.Muralidhar (2008(3) Supreme To-day** **196)** argued that it is not for the court to decide what evidence is to be let in by the accused and accused is entitled to prove his case and hence the order is not sustainable. Learned counsel appearing for petitioner relying on the decision in **Baby Thomas v. Paul (2007(4) KLT 738 and in Moideen** **v. Johny (2007(2) KLT SN 15) argued** that even if it is proved that the date is not to put by the petitioner, it will not affect the validity of the cheque and it will not amount to a material alteration as there is implied authority to fill up the date and when it is admitted that all other writing in the dishonoured cheque made by the petitioner there is no need for the report of an expert. 3. Case of the petitioner from the very beginning was that the dishonoured cheque was issued by him for Rs.75,000/- though the amount CRRP 2650/2008 3 borrowed was only Rs.50,000/-. It was the case that when the cheque was issued date was not shown. According to petitioner, it was issued only as security to enable the petitioner to pay the amount borrowed before its presentation. Case of first respondent on the other hand was that including the date everything seen in Ext.P1 was written by the petitioner and cheque was issued towards repayment of Rs.75,000/-obtained by petitioner earlier. In such circumstance, question whether the dishonoured cheque was issued without a date or with date assumes importance and is a relevant fact to appreciate the evidence of first respondent as well as the acceptability of the defence case. In such circumstance, learned Magistrate was not justified in denying an opportunity to the petitioner to prove his case. 4. Apex Court considered this aspect and held in Nagappa's case (supra). 8. What should be the nature of evidence is not a matter CRRP 2650/2008 4 which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses etc. If permitted to do so, steps therefore, however, must be taken within a limited time. CRRP 2650/2008 5 There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not be at all relevant.” In such circumstance, the order is set aside. C.M.P.3230/2008 in C.C.151/2007 stands allowed. Learned Magistrate is directed to forward the cheque along with the admitted writings of petitioner to the Forensic Science Laboratory as sought for by the petitioner at his expenses. Criminal Revision Petition is disposed of. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006