M/S. REACON ENGINEERS v. KALYANI INTERIORS and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **Crl.MC.No.7801 OF 2019(E)** **TO QUASH ANNEXURE I ORDER DATED 22.10.2019 IN C.M.P.NO.8826 OF 2019 IN CC 7231/2016 OF JMFC (NI ACT CASES), ERNAKULAM** ## **PETITIONER/RESPONDENT/COMPLAINANT:** **M/S. REACON ENGINEERS, 68/169, GANDHI NAGAR, KADAVANTHRA, ERNAKULAM, KOCHI, PIN - 682 020, REPRESENTED BY ITS MANAGING PARTNER P. RAJESH.** **BY ADVS. SRI.MATHEW KURIAKOSE SRI.K.C.BIJU** ## **RESPONDENTS/PETITIONERS/ACCUSED & STATE:** **1 KALYANI INTERIORS, RKP-5/1175, KRISHI BHAVAN ROAD, RAMANATTUKARA P. O., CALICUT - 673 633, REPRESENTED BY ITS MANAGING PARTNER.** - **2 VIJAYAKUMAR** **BY ITS MANAGING PARTNER, KALYANI INTERIORS, RKP-5/1175, KRISHI BHAVAN ROAD, RAMANATTUKARA P. O., CALICUT - 673 633.** **3 SUDHA VIJAYAN KALYANI INTERIORS, RKP-5/1175, KRISHI BHAVAN ROAD, RAMANATTUKARA P. O., CALICUT - 673 633.** - **4 JITHIN VIJAYAKUMAR PARTNER, KALYANI INTERIORS, RKP-5/1175, KRISHI BHAVAN ROAD, RAMANATTUKARA P. O., CALICUT - 673 633.** Crl.M.C.No.7801 of 2019 2 - **5 JINU VIJAYAKUMAR PARTNER, KALYANI INTERIORS, RKP-5/1175, KRISHI BHAVAN ROAD, RAMANATTUKARA P. O., CALICUT - 673 633,** **6 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** ## **SRI C K PRASAD -PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.11.2019, THE COURT ON 26.11.2019 PASSED THE FOLLOWING:** Crl.M.C.No.7801 of 2019 3 **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.7801 of 2019 ----------------------------------------------Dated this the 26[th] day of November, 2019 ## **O R D E R** The petitioner is the complainant in the case C.C.No.7231/2016 on the file of the Court of the Judicial First Class Magistrate (N.I.Act Cases), Ernakulam. 2. The petitioner is a partnership firm. The aforesaid case is one instituted by the petitioner against respondents 1 to 5, another partnership firm and its partners, alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 3. The petitioner is the dealer of air conditioners. It is alleged that the accused had placed work order for installation of air conditioners and that in partial discharge of the amount due to the petitioner, the accused issued a cheque dated 20.08.2016 Crl.M.C.No.7801 of 2019 4 for Rs.5,00,000/- in favour of the petitioner. On dishonour of the cheque, the petitioner has initiated proceedings against the accused for the offence under Section 138 of the Act. 4. When the case was posted for defence evidence, respondents 1 to 5/accused filed an application as Crl.M.P.No. 8826/2019 in the trial court praying that the cheque may be sent to the Forensic Science Laboratory for getting opinion of an expert regarding the signature therein. The petitioner raised stiff objection but the trial court allowed the application as per Annexure-I order. The aforesaid order is challenged in this petition filed under Section 482 Cr.P.C. 5. Heard learned counsel for the petitioner and respondents 1 to 5. 6. Learned counsel for the petitioner has contended that the accused had earlier admitted issuing of the cheque but their plea was only that it was not issued to the petitioner firm but to another firm. Learned counsel also contended that, in the reply notice sent by the accused, they had no case that the cheque did not bear the signature of the managing partner of the accused Crl.M.C.No.7801 of 2019 5 firm. Learned counsel would submit that the attempt of the accused is only to somehow protract the proceedings in the trial court. 7. _Per contra_ , learned counsel for respondents 1 to 5 would contend that, during the cross examination of the complainant, the signature in the cheque was specifically denied by the accused. Learned counsel has contended that an accused has got every right to adduce evidence to disprove the prosecution case. 8. During the trial of the case, the managing partner of the complainant firm was examined as PW1. During the cross examination, he categorically stated that Vijayakumar (who is the second accused and who is the managing partner of the first accused firm) signed the cheque in his presence and gave it to him on 20.08.2016 at Thiruvananthapuram. A suggestion was made to PW1 that the signature in the cheque is not of Vijayakumar and that the signature in the cheque was put by PW1. PW1 denied this suggestion made to him in the crossexamination. It was on the basis of this evidence given by PW1 that the application for sending the cheque to obtain expert Crl.M.C.No.7801 of 2019 6 opinion regarding the signature therein was made by the accused. 9. The trial court allowed the prayer made by the accused, without adverting to any other circumstances of the case, but merely relying on a bald suggestion made to PW1 during the cross-examination, disputing the signature in the cheque. 10. Annexure-D (marked as Ext.P5 in the case) is the copy of the e-mail sent by the complainant firm to the accused firm on 11.08.2016 requesting payment of money. Annexure-E (marked as Ext.P6 in the case) is the copy of the e-mail sent by the accused firm to the complainant firm stating that cheque for Rs. 5,00,000/- had been issued in favour of the firm 'Cools, Calicut”. Annexure-F (marked as Ext.P7 in the case) is the copy of the e- mail sent by the complainant firm to the accused firm on 11.08.2016 requesting issuance of the cheque in the name of the complainant firm. Annexure-G (marked as Ext.P8 in the case) is the copy of the e-mail sent by the accused firm to the complainant firm on 19.08.2016 requesting postponement of the presentation of the cheque in the bank. Crl.M.C.No.7801 of 2019 7 11. Annexure-G e-mail communication from the accused firm to the complainant firm clearly indicates that the accused had issued a cheque for Rs.5,00,000/- in favour of the complainant firm. The cheque number and date are also mentioned in this communication. 12. Annexure-H is the copy of the reply notice sent by the accused to the complainant. It is stated in Annexure-H as follows: _“Actually my clients have issued the above referred cheque in pursuance of the agreement executed between your client and my clients with respect to the interior projects of UAE consulate at Thiruvananthapuram.”_ 13. Again it has been stated in the reply notice as follows: _“The above referred cheque was issued towards the security for transaction on the impression that your client will complete the entire work within 19.05.16 as agreed. Your client had not completed the work and had not done any work after 05.05.16. Without completing the work your client had presented the cheque and in that context the cheque is liable to be bounced as there is no debt or liability due from my clients to your client as the_ Crl.M.C.No.7801 of 2019 8 ## _agreement is not complied.”_ 14. It can be seen from the above that the accused had admitted the drawing of the cheque in favour of the complainant but their plea was that it was issued as a security and that there was no amount due to the complainant firm as the complainant had not completed the work as agreed upon by the parties. 15. In the aforesaid circumstances, in the absence of any dispute raised by the accused in the reply notice with regard to the issuing of the cheque in favour of the complainant, the trial court was not justified in allowing the prayer for sending the cheque for examination by an expert. At this juncture, it is to be noticed that the second accused has got a plea that he was abroad at the time when the cheque was allegedly signed and issued by him to the managing partner of the complainant firm. This is a fact which he could easily prove by producing the copy of the passport. ## 16. In **Kalyani Bhaskar v. M.S.Sampoornam: (2007) 2** **SCC 258** , the Apex Court has held that, adducing evidence in support of the defence is a valuable right and denial of that right Crl.M.C.No.7801 of 2019 9 would mean denial of fair trial. In that case, the Apex Court allowed the application filed by the accused for sending the cheque for the opinion of the handwriting expert, holding that the Magistrate should have granted such a request unless he thinks that the object of the accused is vexation or delaying the criminal proceedings. This decision, therefore, is an authority for the proposition that, if the intention of the accused is to protract the proceedings, the request for sending the cheque for expert opinion can be rejected. ## 17. In **Nagappa v. Muralidhar : AIR 2008 SC 2010** also, the Apex Court allowed the prayer made by the accused for sending the cheque for expert opinion. In this decision also, the Apex Court has held that, the Court being the master of the proceedings, must determine as to whether the application filed by the accused is bona fide or not or whether thereby he intends to bring on record a relevant material. It has also been held that, there cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial. Crl.M.C.No.7801 of 2019 10 ## 18. In **Francis v. Pradeep : 2004 (2) KLT 1080** , this ## Court had observed as follows: _“The easiest way to protract proceedings under Section 138 of the N.I. Act and thus stultify the spirit and object of the provisions of Section 138 of the N.I. Act is to request that the cheque be sent to the expert. The soul of the provision will be lost if there is no expeditious enforcement. On account of pressure of work at the Forensic Science Laboratory, it is common knowledge that the expert will not be able to give the report within a period of three to four years. Convenient protraction can be achieved by requesting that the cheque be forwarded to the expert for examination. It is for the Trial Court to alertly consider the acceptability of such request and ensure that the cheque is forwarded to the expert only if satisfactory reasons are available”._ (emphasis supplied). 19. It is true that in **Aravindakshan Nair v. Essen** **Bankers : 2007 (3) KLT 718** , this Court directed the cheque in question to be forwarded to the handwriting expert for scientific opinion. But, in that case, the trial court had entertained serious doubts about the authentically of the signature in the cheque in Crl.M.C.No.7801 of 2019 11 ## question. 20. The law is trite that any and every request to forward the cheque to the expert need not be blindly and meekly accepted by the learned Magistrate (See **Baby Thomas v.** ## **Paul : 2007 (4) KLT 738 and Anil Ravindran v. Rama Pai :** **2007 (3) KHC 192** ). The court has to be satisfied that the request is a bona fide one having regard to the facts and circumstances of the case (See **Kochukuru v. State of Kerala : 2008 (3) KHC 451** ). 21. In the instant case, having regard to the circumstances mentioned earlier, there can be no doubt with regard to the fact that the request made by the accused for sending the cheque for expert opinion is not bona fide and that the intention is only to protract the proceedings in the case. Therefore, I have no hesitation to hold that the trial court was not justified in allowing the application filed by the accused for sending the cheque to the Forensic Science Laboratory for expert opinion with regard to the signature in the cheque. Crl.M.C.No.7801 of 2019 12 22. Consequently, the petition is allowed. Annexure-I order passed by the learned Magistrate is set aside. It is made clear that nothing stated in this order will, in any way, fetter the rights of the accused to raise all appropriate contentions before the trial court. The learned Magistrate shall decide the case on merits untrammeled by any of the observations made in this order. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.7801 of 2019 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE APPLICATION IN C.M.P.NO.8826 OF 2019 IN C.C.NO.7231 OF 2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I.ACT CASES), ERNAKULAM.** **ANNEXURE B TRUE COPY OF THE STATEMENT OF OBJECTION IN C.M.P.NO.8826 OF 2019 IN C.C.NO.7231 OF 2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I.ACT CASES), ERNAKULAM.** **ANNEXURE C TRUE COPY OF THE E-MAIL COMMUNICATION DATED 10.8.2016 ISSUED BY THE ACCUSED TO THE COMPLAINANT (EXT.P4 IN C.C.NO.7231 OF 2016)** **ANNEXURE D TRUE COPY OF THE E-MAIL COMMUNICATION DATED 11.8.2016 ISSUED BY THE COMPLAINANT TO THE ACCUSED (EXT.P5 IN C.C.NO.7231 OF 2016)** **ANNEXURE E TRUE COPY OF THE E-MAIL COMMUNICATION DATED 11.8.2016 ISSUED BY THE ACCUSED TO THE COMPLAINANT (EXT.P6 IN C.C.NO.7231 OF 2016)** **ANNEXURE F TRUE COPY OF THE E-MAIL COMMUNICATION DATED 11.8.2016 ISSUED BY THE COMPLAINANT TO THE ACCUSED (EXT.P7 IN C.C.NO.7231 OF 2016)** **ANNEXURE G TRUE COPY OF THE E-MAIL CORRESPONDENCE DATED 19.8.2016 ISSUED BY THE ACCUSED TO THE MANAGING PARTNER OF THE COMPLAINANT (EXT.P8 IN C.C.NO.7231 OF 2016)** Crl.M.C.No.7801 of 2019 14 **ANNEXURE H TRUE COPY OF THE REPLY NOTICE DATED 7.10.2016 ISSUED AT THE INSTANCE OF THE ACCUSED TO THE COMPLAINANT'S COUNSEL (EXT.P15 IN C.C.NO.7231 OF 2016) ANNEXURE I CERTIFIED COPY OF THE ORDER DATED 22.10.2019 IN C.M.P.NO.8826 OF 2019 IN C.C.NO.7231 OF 2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I.ACT CASES), ERNAKULAM.** ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY PS TO JUDGE