## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH**
**FRIDAY ,THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940**
## **O.P(Crl.).No.37 of 2019**
**AGAINST THE ORDER/JUDGMENT IN CC 2376/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS, AMBALAPUZHA DATED 15-10-2018**
## **PETITIONER/ACCUSED:**
**HAREESH KUMAR, AGED 50 YEARS S/O KUTTAPPAN, NADUVILE MADATHIPARAMBIL, PURAKKAD P.O., AMBALAPPUZHA, ALAPPUZHA.**
## **BY ADV. SRI.P.SHANES METHAR**
## **RESPONDENTS/STATE AND COMPLAINANT:**
**1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 ACHUTHANANDAN S/O VARUKUTTY, THEKKE MAMPALLIYIL, KAROOR MURI, PURAKKAD P.O., AMBALAPPUZHA, ALAPPUZHA-688 561.**
**BY ADVS. R2 BY SRI.MATHEW JAMES SMT.BINO M.R**
**R1 BY SRI. C.K. PRASAD, PUBLIC PROSECUTOR**
**THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**O.P(Crl.).No.37 of 2019 2**
## **JUDGMENT**
This petition is preferred against the order dated 15.10.2018 in C.M.P.No.5115 of 2018 in C.C.No.2376 of 2013 on the files of the Judicial First Class Magistrate Court, Ambalappuzha (For short, 'the court below').
2. C.C.No.2376 of 2013, is a prosecution launched by the first respondent under Section 142 of the Negotiable Instruments Act, 1881 (for short 'the NI Act'). C.M.P No.5115 of 2018 was filed in the case by the petitioner under Section 311 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') seeking to sent the disputed signature for expert opinion.
3. The petitioner had moved an application, as C.M.P.No.5115 of 2018 under Section 311 Cr.P.C seeking to reopen the evidence which was closed on 10.09.2018. The court below dismissed the application vide the order under challenge, a copy of which is produced alongwith this petition as Ext.P4. Aggrieved by the aforesaid order that the petitioner had approached this Court in the Original Petition seeking to set it aside.
## **O.P(Crl.).No.37 of 2019 3**
4. The grievance of the petitioner was that Section 311 Cr.P.C confers ample authority upon the court below to reopen the evidence and to the parties to the proceedings before a court of law to adduce oral as well as documentary evidence. According to him, it is his right to get the disputed signature examined by an expert and to obtain the opinion of an expert, which is very much essential for arriving at a just and proper decision in the case. According to him, in order to establish his defence that the disputed signature was sought to be sent for expert opinion, by filing the application.
5. Smt.Fousiya the learned counsel representing the second respondent has contended that despite grant of several opportunities, the petitioner has not availed one to sent the disputed signature for expert opinion and in the said circumstances that the court below has passed impugned order. According to her, interference of any nature is totally unwarranted.
6. This Court had a glance at the impugned order. It is seen from the order that C.C.No.2376 of 2013 was pending before the court below since, 2013. The evidence of the complainant was closed primarily on 27.05.2015 and thereafter,
## **O.P(Crl.).No.37 of 2019 4**
the accused was examined under Section 313 (1)(b) Cr.P.C. The petitioner was granted time to adduce defence evidence. On his failure to take steps to adduce defence evidence, evidence was closed and the case was posted for hearing. After granting several adjournments, on 14.06.2016 the petitioner filed an application under Section 311 Cr.P.C. and it was allowed on 20.07.2016. On 28.01.2017, one witness was examined by the petitioner as DW1. It was submitted that the petitioner did not adduce further evidence and therefore the evidence was closed and the case was posted for hearing to 18.02.2017. After granting three adjournments for hearing, the matter was not heard and thereafter, the petitioner had filed an application under Section 311 Cr.P.C, which was allowed on 29.03.2017. The disputed signature was sent for expert opinion by the court. A letter was obtained from the Director of Forensic Science Laboratory, Thiruvananthapuram by the Judicial First Class Magistrate, Ambalapuzha on 24.03.2018 requisitioning certain particulars,, the first among which was extracted herein below:-
“ (i) Some standard writings written by the concerned person(s) in the normal course near about the period as that of the questioned containing similar letters/combinations/words as that in the questioned writings. (Preferably on similar documents as that of the questioned, if available.)”
## **O.P(Crl.).No.37 of 2019 5**
7. Under Clause 3 of the letter certain materials were also required to be furnished by the court to the Laboratory for facilitating the examination of the disputed signature and those are extracted herein below:-
“i. The questioned writings/signature may be encircled with read pencil and marked as Q1,Q2, Q3..... etc. serially.
ii. The specimen writings/signature may be encircled with blue pencil and marked as S1,S2,S3...... etc. serially.
iii. The standard writings signatures written in the normal course may also be encircled with blue pencil and marked as A1, A2, A3...etc. Serially.
iv. A fresh Standard Requisition Form may duly be filled up stating the exact nature of examination and forwarded along with the documents.
v. While forwarding the documents it is also requested that the questioned and standard documents may be kept in one separate sealed packet.”
8. The matter extracted as first above was required to be furnished by the petitioner. The particulars enumerated under clause 1 to 5 are required to be furnished by the court only on obtaining the first among the extracted matter from the petitioner. It is observed by the Magistrate in the impugned order that the petitioner failed to furnish the first among the requisitioned matter. The Magistrate has observed that due to latches of the accused, steps taken for sending the documents
## **O.P(Crl.).No.37 of 2019 6**
for expert opinion was delayed till 06.11.2017. Evenafter granting 12 postings, due to the failure of the accused to cure the defects as requisitioned on 10.09.2018, the evidence was closed and case was posted for hearing. The petitioner had availed four adjournments thereafter. Then the present application was moved seeking to sent the disputed signature for expert opinion. It has been observed by the court below that the petitioner had been sleeping over his right, though sufficient opportunities had been given for him to furnish the particulars as requestioned. Accordingly, the petition was dismissed and the court below had proceeded with the matter thereafter. It is true that, the evidence required to be adduced by the parties was shut down by the court by dismissing the application. In the case on hand, as reported in the order under challenge several opportunities had been provided by the court below for the petitioner to adduce evidence. As rightly observed by the Magistrate, the petitioner had been sleeping over his right. Section 311 Cr.P.C. is not meant to be exercised to the whims and fancies of the parties. It is for the parties to corporate with the court for disposal of the case by furnishing the materials sought to be supplied.
## **O.P(Crl.).No.37 of 2019 7**
9. In the case on hand, the prosecution was launched in the year 2013 and as on date six years have already been elapsed. Sufficient time had been given by the court to the petitioner to furnish the materials required for getting his disputed signature examined by an expert. The petitioner failed to co-operate with the court and that cannot be stated as something short of laches and wilful omission on the part of the petitioner. For the foregoing reasons, this court is declined to interfere with the order under challenge.
In the result, the petition stands dismissed.
## **Sd/-**
**MARY JOSEPH**
**JUDGE**
NAB
## **O.P(Crl.).No.37 of 2019 8**
## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE COMPLAINT IN C.C.NO.2376/2013 ON THE FILE OF JFCM COURT.**
**EXHIBIT P2 TRUE COPY OF THE LETTER NO.B21487/FSL/2018 OF THE DIRECTOR OF FSL, THIRUVANANTHAPURAM (ALONG WITH TYPED COPY).**
**EXHIBIT P3 TRUE COPY OF THE C.M.P.NO.5115/2018 IN C.C.NO.2376/2013 ON THE FILE OF JFCM COURT, AMBALAPPUZHA (ALONG WITH TYPED COPY).**
**EXHIBIT P4 CERTIFIED COPY OF THE ORDER DATED 15.10.2018 IN C.M.P.NO.5115/2018 IN C.C.NO.2376/2013 ON THE FILE OF JFCM COURT, AMBALAPPUZHA.**
## **RESPONDENTS EXHIBITS: NIL**
**//TRUE COPY//**
**P A TO JUDGE**
