Malathi v. Yatheendradass and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 23RD DAY OF JULY 2013/1ST SRAVANA, 1935** ## **Crl.MC.No. 2196 of 2008 ( )** **---------------------------CC.NO. 946/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLUR** **------------------** ## **PETITIONER/ACCUSED :** **------------------------------------** **MALATHI, W/O SASIDHRAN, MOOLAYIL HOUSE, KIZHUTHANI DESOM, THANISSERY P.O. MUKUNDAPURAM TALUK.** ## **BY ADV. SRI.RAJESH CHAKYAT** ## **RESPONDENT/COMPLAINANT :** **----------------------------------------------** **1. YATHEENDRADAS, S/O. RAMAN, VANPARAMBIL HOUSE, CHAKKARAPADAM, PARINCHANAM THRISSUR DISTRICT** ## **2. THE STATE OF KERALA,** **REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA.** **R1 BY ADV. SRI.M.B.PRAJITH** **R2 BY PUBLIC PROSECUTOR SRI. P.P. PADMALAYAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-07-2013, THE COURT ON 23-07-2013 PASSED THE FOLLOWING:** **Mn** **...2/-** ## **Crl.MC.No. 2196 of 2008 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE 1 : COPY OF THE CHEQUE BARING NO.434983 DATED 30.8.2007. ANNEXURE 2 COPY OF THE AGREEMENT DATED 15.4.2005. ANNEXURE 3 COPY OF 313 STATEMENT FILED IN C.C. 946/2007 DATED 25.4.2008. ANNEXURE 4 COPY OF CMP 3411/2008 DATED 6.5.2008. ANNEXURE 5 COPY OF OBJECTION DATED 16.6.2008. ANNEXURE 6 COPY OF ORDER IN CMP NO. 3411/2008 IN CC 946/2007 DATED 9.6.2008.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** K.RAMAKRISHNAN, J. ----------------------------------------------------------------Crl. M.C. No.2196 of 2008 -----------------------------------------------------------------Dated this the 23[rd] day of July, 2013 J U D G M E N T This application has been filed by the accused /petitioner in Crl.M.P.No.3411/2008 in C.C. No.946/2007 on the file of Judicial First Class Magistrate Court, Kodungallur, to quash the order under Section 482 of the Code of Criminal Procedure. 2. The above case was initiated on the basis of a private complaint, filed by the complainant who is the first respondent herein, alleging offences under Section 138 of the Negotiable Instruments Act, herein after called ‘the Act’, on the basis of the disputed Ext.P1 cheque, alleged to have been given by the petitioner herein, in discharge of a legally enforceable debt, which when presented was dishonoured and in spite of notice issued, she had not paid the amount. After completion of the evidence of the complainant, and after examination of the petitioner under Section 313 of Criminal Procedure Code, she filed Criminal M.P. No.3411/2008 for sending the disputed Ext.P1 cheque for expert opinion. The petitioner had a case that the cheque was not signed by her and one of the blank cheques given to one Premlal, was misused Crl. M.C. No.2196 of 2008 2 and the present complaint has been filed. She had no transaction with the complainant and that can be proved by sending Ext.P1 cheque for expert opinion. 3. The first respondent filed counter contending that the application is not maintainable. The attempt of the petitioner is only to protract the proceedings. The cheque was issued by the accused in discharge of her liability. The allegation that she did not know the complainant and she had given blank cheque to one Premlal, as instructed by him, when her husband borrowed ₹ 1,50,000/- from him etc., is not correct. When she was examined in C.C.No.67/2007, she had stated in Ext.D2 deposition that she had admitted the signature in that cheque. If that cheque is compared with this cheque, it can be established that both were signed by the same person. In case this application is allowed, the cheque No.434981, which is the subject matter in C.C.No.67/2007 of the Judicial First Class Magistrate-II, Irinjalakuda also to be sent for comparison with this cheque. He prayed for dismissal of the application. 4. After considering the rival contentions of both Crl. M.C. No.2196 of 2008 3 parties, the learned magistrate dismissed the application by the impugned order. Dissatisfied with the same, the petitioner has come before this court with this petition. 5. Heard both sides and considered the rival contentions of both parties. 6. Learned counsel for the petitioner submitted that the accused has got a definite case, that the cheque was not signed by her. So under the circumstances, in order to prove her innocence, it is necessary to send Ext.P1 cheque for expert opinion, to find out whether the signature in Ext.P1 was that of the accused. She has not filed this application as a dialectic tactics but, to prove her case. The reasons given by the learned magistrate for dismissing the application are unsustainable in law. By dismissing the application, valuable right of the accused has been denied. So he prayed for allowing the application. 7. On the other hand, the counsel for the first respondent argued that the learned magistrate has considered all the aspects and rightly dismissed the application. 8. The case was filed by the first respondent on the Crl. M.C. No.2196 of 2008 4 basis of the disputed Ext.P1 cheque, on the allegation that it was given by the accused who is the petitioner herein, in discharge of her liability towards him. The fact that issuance and execution proceedings of the cheque were denied by the accused, is not in dispute. It is true that when the execution of the cheque is denied, initial burden is on the complainant to prove his case. But, at the same time in order to establish the case of the accused, she is also has a legal duty to adduce evidence to convince the court that her case is probable and genuine. Further admitting the signature and admitting execution of the cheque are different. Even in cases where the signature is admitted, there is a possibility of accused establishing that the cheque was not executed by him, as claimed by the complainant. It is true that the reasons stated by the magistrate for dismissing the application cannot be said to be palpably wrong, as the court has got power to compare the admitted signature with the disputed signature invoking the power under Section 73 of the Evidence Act, but, it is not so safe in a criminal case, where the culpability of the accused has to be decided solely on the basis of such comparison alone. In such cases, it is always better for the Crl. M.C. No.2196 of 2008 5 court to get the assistance of an expert as external evidence apart from comparison of the cheque by the court itself to aid the court to arrive at a correct conclusion regarding dispute in the matter. 9. Further in the decision reported in **I.L.R. 2007 (1) Kerala Series 433 Bindu K.G. v** . **Sreekantan Nair. P and another** , this court has held that, merely because the accused admitted the signature in the cheque, court cannot deny the accused's plea to send the cheque to handwriting experts, for the opinion as to whether the entries other than the signature in the cheque is that of the accused. Further in the decision reported in ( **2008 (5) SCC 633) T. Nagappa v. Y.R. Muralidhar** , it has been held that if accused had a case that the writings on the cheque were not his and they were forged, then he is entitled to adduce evidence by sending the disputed cheques for expert opinion and if such an application is filed, the right of the accused to prove his case cannot be denied by dismissing the application. 10. It is also held in the same decision that, it is an invaluable right available to the accused to defend his case and denying that right will cause prejudice to him. So, it is clear from Crl. M.C. No.2196 of 2008 **==> picture [7 x 9] intentionally omitted <==** the above dictum that, proving the case of the accused by adducing evidence is a valuable right available to the accused and in cases where the accused is denying the execution of the cheque itself including the signature, then his right to get the document examined by an expert cannot be denied merely on the ground that, it will delay the proceedings. Court can always fix the time for getting the report, so that, the delay in disposing of the case can be to some extent avoided. 11. So, considering the facts and circumstances of the case and the nature of contention taken by the accused, dismissal of the application by the learned magistrate, for the reasons stated in the petition appears to be unsustainable in law, as it is the matter for evidence and conclusion to be arrived at by appreciating the evidence available on recored, which cannot be imported by the magistrate at this stage, while considering the application for sending the disputed cheque for expert opinion for the reasons stated by the accused. Further the request of the complainant to compare the admitted cheque said to have been issued by her containing her signature, involved C.C. No.67/2007 on the file of the Judicial First Crl. M.C. No.2196 of 2008 7 Class Magistrate Court, Iringalakuda, can also be allowed. So that, his right can also be protected. So under the circumstances, the order passed by the magistrate, dismissing the application has to be set aside and the same has to be allowed and an opportunity has to be given to the petitioner to prove her case, by sending the disputed cheque for expert opinion. So, the application has to be allowed by setting aside the order of the lower court. In the result, the application is allowed and the impugned order passed by the learned magistrate in Annexure-A, that is order in Criminal M.P. 3411/2008 in C.C. No.946/2007 of that court is set aside, and the application is allowed. The learned magistrate is directed to send the disputed Ext.P1 cheque to Forensic Science Laboratory Thiruvananthapuram, to get the opinion of the handwriting expert, as prayed for in the application. While sending this cheque, learned magistrate is also consider the application, if any filed by the complainant, to call for the cheque in C.C.No.67/2007 on the file of the Judicial First Class Magistrate Court, Irinjalakkuda and send that cheque also along with other available admitted documents for comparison of the handwriting Crl. M.C. No.2196 of 2008 8 experts to give his opinion on this aspect. The parties are directed to appear before the court below on 12.08.2013. Office is directed to communicate this order to the Court below, forthwith. Sd/K.RAMAKRISHNAN, JUDGE // True Copy // P.A. to Judge ss