Jiju v. Rishaj and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** ## **Crl.MC.No.7626 OF 2019(C)** **AGAINST THE ORDER/JUDGMENT IN ST 147/2019 OF CHIEF JUDICIAL MAGISTRATE ,THRISSUR** **CRIME NO.1565/2014 OF Town West Police Station , Thrissur** ## **PETITIONER/COMPLAINANT:** **JIJU, AGED 40 YEARS S/O.FRANCISE, THATTIL CHEENIKKAL HOUSE, NEDUPUZHA, KANIMANGALAM, THRISSUR DISTRICT** **BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SMT.CHITHRA.S.BABU SRI.R.N.SANDEEP** ## **RESPONDENT/ACCUSED & STATE:** **1 RISHAJ, AGED 34 YEARS S/O.BALACHANDRAN, 'SATHYAMAYA', PUTHURKKARA, AYYANTHOLE, THRISSUR DISTRICT-680003 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031** **R1 BY ADV. SRI.P.VIJAYA BHANU (SR.) R1 BY ADV. SRI.P.M.RAFIQ R1 BY ADV. SRI.M.REVIKRISHNAN R1 BY ADV. SRI.VIPIN NARAYAN R1 BY ADV. SRUTHY N. BHAT R1 BY ADV. SRI.V.C.SARATH R1 BY ADV. SRI.AJEESH K.SASI R1 BY ADV. SMT.POOJA PANKAJ R1 BY ADV. SRI.THOMAS J.ANAKKALLUNKAL** **R2 BY SRI C N PRABHAKARAN -PP SR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.11.2019, THE COURT ON 06.01.2020 PASSED THE FOLLOWING:** **Crl.MC.No.7626 OF 2019(C)** **2** ## **R. NARAYANA PISHARADI, J** ## **----------------------------------------------------** **Crl.M.C.No.7626 of 2019** **-----------------------------------------------------** Dated this the 6[th] day of January, 2020 ## **O R D E R** The petitioner is the complainant in the case S.T No.147/2019 on the file of the Court of the Chief Judicial Magistrate, Thrissur. 2. The complaint filed by the petitioner against the first respondent is under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 3. During the trial of the aforesaid case, the petitioner/complainant was examined as PW1. During the crossexamination of PW1, the first respondent/accused denied the signature in Ext.P1 cheque. Thereafter, the petitioner filed Annexure-E petition before the trial court for sending the cheque to an expert for obtaining opinion on the signature therein. As per Annexure-F order, the learned Magistrate dismissed the aforesaid application. The aforesaid order is challenged in this petition filed under Section 482 Cr.P.C. 4. Heard the learned counsel for the petitioner and also the first respondent. **Crl.MC.No.7626 OF 2019(C)** **3** 5. Before considering the merits of the order passed by the learned Magistrate, it is pertinent to note that the first respondent/accused had made a complaint against the petitioner/complainant alleging that the petitioner had forged the signature in Ext.P1 cheque and a case was registered against the complainant by the police in that matter. After investigation of the aforesaid case, the police filed chargesheet against the petitioner/complainant and another person for committing the offences punishable under Sections 379,420,465,468 and 471 read with 34 IPC. The aforesaid case is pending before the Chief Judicial Magistrate, Thrissur as C.C No. 166/2016. 6. The case filed by the petitioner/complainant against the first respondent for the offence under Section 138 of the Act was pending before the Judicial First Class Magistrate-II, Thrisuur as C.C No. 2875/2013. The aforesaid case was withdrawn to his court by the learned Chief Judicial Magistrate and renumbered as S.T No. 147/2019. 7. It is submitted by the learned counsel for the parties before this Court that simultaneous trial of the aforesaid two cases has been held in the court below. **Crl.MC.No.7626 OF 2019(C)** **4** 8. It is also pertinent here to note that, during the investigation of the case filed by the accused against the complainant, the police had collected specimen signatures of the accused and got the signature in Ext.P1 cheque compared with such specimen signatures and obtained a report of the expert. It is submitted before this Court by the counsel for both sides that the expert opinion obtained in that case is that the disputed signature in the cheque differs with the standard signatures. 9. The application filed by the petitioner, for sending the cheque for obtaining the opinion of an expert with regard to the signature therein, was dismissed by the learned Chief Judicial Magistrate mainly for two reasons. The first reason is that the complainant was very well aware even earlier that the accused does not admit the signature in Ext.P1 cheque. Learned Magistrate has stated in the impugned order that even before the signature in Ext.P1 cheque was denied by the accused during the cross-examination of PW1, the complainant was aware of the aforesaid plea by the accused. The second reason stated by the learned Magistrate for dismissing the application filed by the complainant is that there is already an expert report available in C.C No. 166/2016 and if the complainant has got **Crl.MC.No.7626 OF 2019(C)** **5** dispute regarding the correctness of the expert opinion available before the court, he can examine the expert and prove it. 10. As per the submissions made before this Court by the learned counsel for the parties, what the police had done during the investigation of the case registered against the complainant was to get an expert opinion with regard to the signature in Ext.P1 cheque by comparison of it with the specimen signatures taken from the accused. When the prosecution case in C.C No. 166/2016 is that the complainant in S.T No. 147/2019 is the person who forged the signature in Ext.P1 cheque, I fail to understand how the expert opinion obtained by the police would help the prosecution in C.C No. 166/2016 to prove the case against the complainant. What is to be proved by the prosecution in C.C No. 166/2016 is that the complainant in S.T No. 147/2019 is the author of the signature in Ext.P1 cheque and not whether it is a signature put by some other person or not. 11. The two reasons stated by the learned Magistrate for dismissing the application filed by the complainant are not sustainable. The first reason stated by the learned Magistrate is that the complainant was very well aware of the plea of the accused very earlier but he did not take any steps earlier to send the cheque for expert opinion. The complainant had every right to wait till the **Crl.MC.No.7626 OF 2019(C)** **6** completion of his evidence and to make his own assessment of the evidence and decide whether it is necessary to send the cheque for expert opinion. He might have been earlier confident that he could adduce sufficient evidence to prove the execution of the cheque by the accused. Only if the evidence adduced by him is found to be insufficient to prove the execution of the cheque by the accused, it would have been necessary for him to take steps to send the cheque for expert opinion. Moreover, mere denial of the signature in the cheque by the accused does not oblige the complainant to get expert opinion in that regard. 12. The other reason stated by the learned Magistrate, that the complainant can examine the expert and prove that the report of the expert obtained in the other case is incorrect, is also not sustainable. It is submitted before this Court by the counsel for the parties that no joint or consolidated trial of the two cases is conducted and what is conducted is only simultaneous trial of both cases. If that be so, the findings in one case cannot be based on the evidence in the other case. The complainant in S.T No. 147/2019 will not be able to bring the evidence in the other case to prove his case. Moreover, it is a report obtained by the police during the investigation of the case registered against him. As noticed earlier, the expert opinion in C.C **Crl.MC.No.7626 OF 2019(C)** **7** No. 166/2016 was obtained by comparison of the signature in Ext.P1 cheque with the specimen signatures of the accused which were collected during the investigation. It is not a report obtained by comparison of the signature in Ext.P1 cheque with the signatures of the accused which were anterior in time to the date of the cheque. 13. Inspite of the above findings, I am of the view that, for another reason, the learned Magistrate was justified in dismissing the application filed by the complainant. Annexure-E application filed by the complainant does not contain the necessary details to be included in an application for sending a document for expert opinion. It is not stated in Annexure-E application to whom the cheque has to be sent for expert opinion, whether it is to be sent to the forensic science laboratory or to a private expert or to some other person. It is also not stated in Annexure-E application how the comparison of the signature in Ext.P1 cheque has to be made, whether the comparison has to be made with the specimen signatures of the accused to be obtained from him or whether the comparison has to be made with the signatures of the accused contained in some documents anterior in time. If the comparison has to be made with the signatures of the accused in some documents which are anterior in time to the date of Ext.P1 cheque, it has to be mentioned in the application, whether any **Crl.MC.No.7626 OF 2019(C)** **8** such documents are available. In the absence of any such particulars mentioned in Annexure-E application, even if the Magistrate had found that the cheque had to be sent for expert opinion, the application could not have been allowed by the learned Magistrate. 14. At this juncture, it would be advantageous to refer to a passage from the decision in **Ajithkumar v. Rejin Kumar: ILR 2009(3) Kerala 43,** which gives a clear idea regarding the burden on the parties to prove the genuineness of the signature in the cheque in a case under Section 138 of the Act. In the aforesaid decision, this Court had held as follows: “The learned Magistrate has compared the signatures of the drawer in Ext.P1 with the admitted signatures of the accused in some documents, Ext.P5 acknowledgement card and Ext.D3 specimen signature card of the accused produced by D.W.2, which was maintained by the bank wherein the account relating to Ext.P1 was operated. In the impugned judgment, reference is also made that comparison was made with another document exhibited as Ext.D5, presumably it must be a mistake as Exts.D1 to D3 alone were exhibited by the accused. Strangely enough, no comparison was made by the learned Magistrate of the signature appearing in Ext.P1 with the signatures of the accused seen in Ext.P7 agreement. Signature of the accused in Ext.P5 acknowledgement card and his vakkalath for **Crl.MC.No.7626 OF 2019(C)** **9** comparison with the signature in Ext.P1 by the learned Magistrate to determine whether Ext.P1 had been signed by the accused, no doubt, was a futile exercise. No relevance could have been given to the signature of the accused in Ext.P5 acknowledgement card and vakkalath which have got only self serving value and, further, those signatures were subscribed by the accused after the dishonour of Ext.P1 cheque. Strangely enough, the learned Magistrate has also taken the statement of P.W.1 in his evidence that there is difference in the signature of Ext.P1 and P5 acknowledgement card of the accused as a circumstance justifying his conclusion that the signature in Ext.P1 cheque differed from the signatures of the accused in other documents. The accused who disputed his signature in Ext.P1 has not taken any step to substantiate his plea of not signing that instrument was lost sight of by the learned Magistrate when he proceeded to compare the signature appearing in Ext.P1 with the signatures of the accused in some documents of which other than Ext.D3 specimen card could have been given any value for the purpose of comparison. I fail to understand why the learned Magistrate has not verified the signature in Ext.P1 with Ext.P7 agreement, the stamp papers which had been purchased in the name of the accused nearly four months prior to the presentation of Ext.P1 cheque before the bank. No burden was cast upon the complainant to prove that the signature appearing in Ext.P1 was that of the accused as it was for the **Crl.MC.No.7626 OF 2019(C)** **10** accused to establish his defence that the instrument admittedly covered by the account maintained by him was not signed by him. To sustain his case that the instrument was forged and his signature was fraudulently subscribed by someone else in Ext.P1 instrument as contended by the accused, he should establish it by taking steps for sending the document for forensic examination with such other documents containing his signatures subscribed at an anterior point of time earlier to Ext.P1. No such step was taken by the accused other than causing the production of Ext.D3 specimen signature card relating to his account which is hardly sufficient to show that Ext.P1 instrument was not signed by him. He has not even made any attempt to substantiate his defence over the denial of his signature in Ext.P1 cheque. Opinion given by D.W.2, the Secretary of the Bank that the signature in Ext.P1 differed from the signatures of the accused in Ext.D3 specimen card, which, of course, the learned Magistrate has not taken into account, is unworthy of any value.” (emphasis supplied) 15. Therefore, it is for the complainant to rethink whether the evidence adduced by him is sufficient to prove the execution of Ext.P1 cheque by the accused. If he is advised that it is necessary to get expert opinion with regard to the signature in Ext.P1 cheque, I find that it would be proper to give him an opportunity to file a proper application before the trial court for that purpose. **Crl.MC.No.7626 OF 2019(C)** **11** 16. Consequently, the petition is dismissed. However, the petitioner/complainant is at liberty to file a fresh application in the court below for sending the cheque for expert opinion for comparison of the signature therein with the signature of the accused/first respondent. Such application, if any, shall be filed by him within a week from today. If any such application is filed by the petitioner/complainant with necessary particulars as indicated in this order, the learned Magistrate shall dispose of it on merits within a period of two weeks from the date of filing it. 17. The interim order passed by this Court on 20.11.2019 in Crl.M.A No. 1/2019 will stand vacated on the expiry of a period of one week from today. **Sd/-R. NARAYANA PISHARADI JUDGE** ## **lsn** **Crl.MC.No.7626 OF 2019(C)** **12** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF PRIVATE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR** - **ANNEXURE B TRUE COPY OF PRIVATE COMPLAINT SUBMITTED BEFORE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR** - **ANNEXURE C TRUE COPY OF FIR IN CRIME NO.1565/14 OF THRISSUR TOWN WEST POLICE STATION** - **ANNEXURE D TRUE COPY OF FINAL REPORT IN CRIME NO.1565/14 OF THRISSUR TOWN WEST POLICE STATION** - **ANNEXURE E TRUE COPY OF CMP 5719/19 IN ST 147/19 ON THE FILE OF CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR** - **ANNEXURE F CERTIFIED COPY OF ORDER DATED 27.08.2019 IN CMP 5719/19 IN ST 147/19 ON THE FILE OF CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** ## **LSN** **P.A TO JUDGE**