Khaleellullah A.K. v. Jaffer Mandian & The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939** **Crl.MC.No. 7288 of 2017 () ---------------------------** **PETITIONER(S)/ACCUSED: ---------------------** **KHALEELLULLAH A.K.,** **S/O.AMINA, AGED 22 YEARS,** **OPPOSITE TELEPHONE EXCHANGE, P.O.CHERUVATHUR, KASARAGOD DISTRICT.** **BY ADVS.SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.PRAJIT RATNAKARAN** ## **RESPONDENT(S):/COMPLAINANT & STATE** **--------------** **1. JAFFER MANDIAN, AGED 33 YEARS, S/O.ALEEMA, KANHIRAYIL HOUSE, ATHINHAL P.O., MANIKOTH, AJANUR, KASARGOD DISTRICT.** **2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R2 BY SRI.SAIGI JACOB PALETTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2811-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 7288 of 2017 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------ANNEXURE 1- COPY OF THE COMPLAINT FILED BY THE COMPLAINANT. ANNEXURE 2- COPY OF THE CHEQUE BEARING NO.02005847. ANNEXURE 3- COPY OF THE CHEQUE BEARING NO.02005845. ANNEXURE 4- COPY OF THE CHEQUE BEARING NO.02005846.** **ANNEXURE 5- COPY OF THE CHEQUE BEARING NO.02005848.** **ANNEXURE 6- COPY OF THE CMP.1419/17 IN CC.2236/13 OF THE JFCM COURT-I, HOSDURG.** **ANNEXURE 7- COPY OF THE COUNTER IN CMP.1419/17.** **ANNEXURE 8- COPY OF THE ORDER DATED 09/08/2017 IN CMP.1419/17 IN CC.2236/13 OF THE JFCM COURT-I, HOSDURG.** **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** **//TRUE COPY//** **PS TO JUDGE.** jg-21/12 ## **ALEXANDER THOMAS, J. ------------------------------------** ## **Crl.MC No.7288 of 2017** ------------------------------------Dated, this the 28[th] day of November, 2017 ## **O R D E R** The order under challenge in this petition is one rendered by the trial court concerned (Court of Judicial First Class Magistrate-I, Hosdurg) on 9.8.2017, whereby the application made by the petitioner as per Annexure6 (Crl.MP No.1419/2017) for sending the cheques along with certain handwritings to the Forensic Science Laboratory for handwriting analysis has been rejected by the court below. 2. This petition was admitted on 25.10.2017 on which day, the learned Prosecutor had taken notice for R-2 State and notice was ordered to be issued to R-1 returnable within two weeks. Now, it is reported by the Registry that notice to R-1 (complainant) has been duly served. But, there is no appearance for that party. 3. Heard Sri.K.R.Avinash (Kunnath), learned counsel appearing for the petitioner (accused) and Sri.Saigi Jacob Paletty, learned Prosecutor appearing for the R-2 State. In spite of due service of notice on R-1 (complainant), there is no appearance for that party. Crl.MC 7288/17 2 4. The case set up by the complainant in para 2 of Annexure-1 complaint is to the effect that the accused had issued all the cheques in question. It appears that the accused had not sent any reply to the statutory demand notice issued by the complainant under Section 138 proviso (b) of the Negotiable Instruments Act. During the crossexamination of PW1, the defence taken up by the accused is to the effect that all the handwritten entries in the four dishonoured cheques in question belonging to that of the complainant and that the complainant is the brother in law of the accused and that the cheques have been misused by the complainant, etc. Thereafter, the complainant has filed Annexure-6 application, Crl.MP No.1419/2017, asserting therein that the complainant has made all the entries in the four dishonoured cheques and that during the cross-examination, the complainant has denied the suggestion that the entries in those cheques are made by him and that therefore, the accused has prayed in Annexure-6 application that professional opinion of the handwriting experts is highly necessary for rendering just decision in the trial and accordingly prayed that the four dishonoured cheques covered by Exts.P2 to P5 along with another cheque of the complainant as per Ext.P13 should be sent to the Forensic Science Laboratory for comparison and Crl.MC 7288/17 3 handwriting analysis. The complainant had filed Annexure-7 counter/objection to Annexure-6 application by pointing out that he had duly denied the suggestion put to him by the defence during the crossexamination that the entries in Exts.P2 to P5 cheques are in the handwriting of the complainant and further he has admitted that the handwriting in Ext.P13 cheque is that of the complainant and that a bare comparison, through a naked eye, of the handwriting in Ext.P13 with that of Exts.P2 to P5 dishonoured cheques involved in this case would make it clear that the handwritten entries in Exts.P2 to P5 cheques are not that of the complainant and that the controversy can be resolved by taking recourse to the provisions contained under Section 73 of the Evidence Act and that it is not necessary to send the cheques to the Forensic Science Laboratory for expert opinion etc. The trial court as per the impugned Annexure-8 order dated 9.8.2017 has rejected the request made by the petitioner (accused) as per Annexure-6 application. The main ground on which the trial court has denied the request of the accused is that such a defence suggestion was made by the accused only at the time of crossexamination of PW1 and that the accused had not availed the opportunity to send a reply notice to the statutory demand notice sent by the Crl.MC 7288/17 4 complainant under Section 138 proviso (b) of the Negotiable Instruments Act and that the present attempt is only to delay and protract the proceedings, etc. 5. On a perusal of the materials made available to this Court, it is seen that the accused would admit that he had not chosen to send any reply notice to the statutory demand notice, and thereafter, he had availed the first opportunity to put up his defence case during the cross examination of PW1 by asserting that the handwritten entries in the four dishonoured cheques involved in this case are that of the complainant. Since the said factual suggestion made by the defence has been denied by the complainant, the only proper way to resolve this controversy to determine as to who is the author of the handwritten entries in the dishonoured cheques, is to send those cheques along with such handwritings to the Forensic Science Laboratory for expert opinion. True that the accused has not sent any reply notice to the statutory demand notice sent by the complainant. But, that by itself will not sue against the accused or would, in any manner, seriously prejudice the right of the accused to avail reasonable defences that are opened to him in the criminal trial. The efforts made by the trial court as if the non-issuance of a reply notice by the Crl.MC 7288/17 5 accused would be the end of the role to him, to say the least, is illegal and improper. 6. The Apex Court in the decision in **T. Nagappa** v. **Y.R. Muralidhar** , reported in (2008) 5 SCC 633, has held that as to what should be the nature of the defence evidence, is not a matter, which should be left only to the sole discretion of the trial court and it is the accused who knows best how to prove his defence, and though court being the master of the proceedings must determine as to whether the application filed by the accused in terms of Section 243(2) of Cr.PC is bona fide or not or whether thereby he intends to bring on record a relevant material, etc., ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, and if permitted to do so, steps therefor must be taken within a limited time. The accused should not be allowed to unnecessarily protracting the trial or summon witnesses, whose evidence would not be at all relevant. Rejection of bona fide application of the accused under Section 243(2) of Cr.PC to substantiate his right to defence in respect of cheque, was held to be improper in the facts of that case. It will be profitable to refer to paras 9 to 11 of the above said decision of the Apex Court, which read as follows: Crl.MC 7288/17 6 _"9. What should be the nature of evidence is not a matter 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 therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant._ _10. The learned Trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide._ _11. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar v. M.S. Sampoornam[1] (in which one of us, L.S. Panta, J., was a member) wherein it was held : (SCC p.262, para 12)_ _"12. Section 243(2) is clear that a Magistrate holding an inquiry under_ CrPC _in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. ‘Fair trial’ includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice_ Crl.MC 7288/17 7 _should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them." 1 (2007) 2 SCC 258 : (2007) 1 SCC (Cri) 577.”_ 7. The Apex Court in the decision in **Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs** .), reported in (2007) 2 SCC 258 has dealt with a case where prayer was made by the accused to ascertain the genuineness of the signature on it and that by declining the plea made by the accused for expert opinion, it deprived the accused an opportunity of his right to rebut the complainant’s version and that the accused could not be convicted without an opportunity being given to present his/her defence evidence and that denial of the said opportunity to defence would lead to an unfair trial, etc. It will be relevant to note paras 12 to 14 of the above said decision of the Apex Court in **Kalyani Baskar’s** case (supra), which read as follows:- _“12. Section 243 (2) is clear that a Magistrate holding an inquiry under Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant_ Crl.MC 7288/17 8 _cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. “Fair trial” includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable._ _13 For all the foregoing reasons, we allow this appeal and set aside the order of the High Court dated 10.02.2004 passed in Criminal Revision Case No.335 of 2002 by which the order dated 15.11.2001 of the Judicial Magistrate made in Crl. M. P. No.341 of 2001 in C.C. No. 439 of 1998 dismissing the application of the appellant under Section 243 Cr.P.C. was affirmed. Accordingly, Crl. M. P. No.341 of 2001 in C.C. No.439 of 1998 on the file of the Judicial Magistrate, Tambaram, Chennai, shall stand allowed. The learned Magistrate shall take appropriate steps for obtaining the report of handwriting expert on the point whether the signature on the cheque is that of the accused and shall proceed with the trial of the case in accordance with law. Since the case is very old, further proceedings shall be taken with utmost expedition._ _14. We make it clear that any observation made in this order shall not be construed as an expression of opinion on the merits of the case and the same shall be decided by the Magistrate on its own merit.”_ 8. In the light of these legal principles as settled by the Apex Court and by various other rulings of High Courts, the abovesaid approach Crl.MC 7288/17 9 made by the trial court in this case requires interdiction. Accordingly, the impugned order at Annexure-8 rejecting the plea of the accused will stand set aside. 9. If in case, the defence set up during the cross examination of PW1 has not seriously disputed about the signature in the cheques, then there is no necessity for the trial court to get the expert opinion regarding the signature in the cheque and the expert opinion need be confined only on the handwritten entries in the cheques. 10. Resultantly, it is ordered that the trial court will take steps to send the four dishonoured cheques (Exts.P2 to P5) along with Exts.P13 and sample handwritings of the complainant and the accused to the Forensic Science Laboratory for expert opinion. The trial court should take necessary sample handwritings of the complainant and the accused as per the requisite procedure in that regard and should, thereafter, take steps to ensure that the four dishonoured cheques involved in this case as well as Ext.P13 along with such sample handwritings of the complainant and the accused are forthwith thereafter sent to the Forensic Science Laboratory concerned for their expert opinion. The Forensic Science Laboratory authorities should ensure that their expert opinion in the matter is Crl.MC 7288/17 10 furnished without too much delay, at any rate, preferably within a period of four months from the date of requisition made by the trial court in that regard. The trial court will ensure that a copy of this order is also forwarded to the Forensic Science Laboratory authorities along with the request of the trial court, for necessary action and compliance. The petitioner will produce a certified copy of this order before the trial court for necessary action. With these observations and directions, this Criminal Miscellaneous Case will stand disposed of. **ALEXANDER THOMAS JUDGE** jg