P. Bindu v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2023-11-22
Court Decision / Holding: Annexure-A4 order is confirmed. The court below shall recall the petitioner if she desires and mark the photostat copies of the cheques in evidence as secondary evidence under Section 65(a) of the Indian Evidence Act, since the originals have already been marked. If the two cheques are accepted as secondary evidence, the court below may, if relevant, compare the originals with the photostat copies under Section 73. The court below must dispose of S.T.No.1120/2019 in accordance with law and as expeditiously as possible.
Final Disposition: Petition disposed; Annexure-A4 order confirmed; photostat copies to be marked as secondary evidence; lower court to proceed expeditiously in accordance with law.

Parties to the Case

Appellants / Petitioners

P. Bindu

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
K. Krishnakumar

Legal Representation & Advocates

Counsels for Petitioners

• A. Ranjith Narayanan
• A. Simi

Counsels for Respondents

• P. V. Anoop Phi jo Philip
• Anju R. S.
• K. C. Mohamed Rashid
• Bijitha B. Bose

Case Synopsis & Summary

This Criminal Misc. Case (CRL.MC No. 9105/2023) from the Kerala High Court challenges the Magistrate’s dismissal of an application to send two cheques for expert opinion in ST No.1120/2019 under Section 138 NI Act. The petitioner, P. Bindu, contends she merely handed over two blank cheques and took photocopies before giving them to the complainant; the complaint alleges that the cheques were signed, filled, and dishonoured for insufficient funds. The petitioner sought to send the cheques to an expert to verify whether the signatures on the cheques fully superimpose with the signatures on the photocopies and to determine whether the amounts/writings were added later. The Magistrate rejected the request on the ground that photostat copies cannot be sent for expert opinion unless the originals are produced with contemporaneous documents. The High Court agrees that the photostat copies can be used as secondary evidence under Section 65(a) of the Indian Evidence Act, particularly since the originals are already marked, and directs the lower court to recall the petitioner and mark the photocopies. It also allows a possible comparison under Section 73 if relevant, and directs expeditious disposal of the case. The court acknowledges Bir Sing v. Mukesh Kumar to the extent that a signed blank cheque may be filled and still be valid, but emphasizes the defence evidence cannot be foreclosed.

Provisions of Law Cited

CrPC Section 482Negotiable Instruments Act Section 138Indian Evidence Act Section 65(a)Indian Evidence Act Section 73

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner sought to send the two cheques for expert opinion to establish whether the signatures on the cheques matched the petitioner’s signatures on photocopies and to determine whether values were added later. She argued that photostat copies can be marked as secondary evidence under Section 65(a) of the Indian Evidence Act, since the original cheques have already been marked, and that a comparison under Section 73 may be relevant to ascertain the veracity of the handwriting. The defence contends that denying examination would foreclose her right to present defence evidence.

Contentions of Respondents

The respondent opposed the application, arguing that photostat copies are prone to manipulation and cannot be sent for expert opinion; they contend that the comparison would be unreliable and that the original cheques and contemporaneous documents must accompany any such analysis.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Bir Sing vs. Mukesh Kumar	2019 (1) KHC 774 SC	Positive	The Supreme Court decision is cited to support that a signed blank cheque may be filled and still be valid, which underpins the allowance of defence-related evidence in this case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945 CRL.MC NO. 9105 OF 2023** **AGAINST THE ORDER/JUDGMENT ST 1120/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V,KOZHIKODE** ## **PETITIONER/S:** P BINDU AGED 47 YEARS W/O VINOD, BINCY NIVAS, MANNUR VALAVU, MANNUR, KOZHIKODE, PIN - 673328 BY ADVS. A.RANJITH NARAYANAN A.SIMI ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 K KRISHNAKUMAR, AGED 54 YEARS. S/O SIVASANKARAN NAIR, EZHUTHASSAN PARAMBA, FEROKE (PO), KOZHIKODE, PIN - 673101 BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP(K/1150/2010) ANJU R S.(K/002806/2022) K C MOHAMED RASHID(K/1341/2023) BIJITHA B. BOSE(K/002479/2023) ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 9105 OF 2023 2 ## **ORDER** The petition is filed under Section 482 of the Code of Criminal Procedure (in short, 'Code') to quash the order in CMP No.1564/2023 in ST No.1120/2019 (Annexure-A4) passed by the Court of the Judicial First Class Magistrate-V, Kozhikode dismissing the application filed by the petitioner to send two cheques for expert opinion. 2. The petitioner's case in the petition is that she is the accused in the above case, which is filed by the 2[nd] respondent against her, alleging that she has committed the offence under Section 138 of the Negotiable Instruments Act. The 2[nd] respondent has alleged in Annexure-A1 complaint that, the petitioner had certain financial dealings with the 2[nd] respondent and in discharge with the said liability, she had issued two cheques in favour of the 2[nd] respondent. The cheques, on presentation to the bank, got dishonoured due to insufficiency of funds in the bank account of the CRL.MC NO. 9105 OF 2023 3 petitioner. Despite sending a statutory lawyer notice to the petitioner, she failed to pay the demanded amount. Hence, she committed the above offence. 3. The petitioner's defence is that she had only signed and handed over two blank cheques to the 2[nd] respondent and had taken photostat copies of the cheques. Nonetheless, in Annexure-A1 complaint it was averred that the cheques were filled up and signed by the petitioner. 4. In order to disprove the above assertion, the petitioner filed Annexure-A2 application to send the cheques for expert opinion. The application was opposed by the 2[nd] respondent through Annexure-A3 counter statement. 5. The learned Magistrate, by the impugned order, dismissed the application mainly on the ground that the photostat copies of the cheques cannot be send for expert opinion unless the original cheques are produced along with the contemporaneous documents. CRL.MC NO. 9105 OF 2023 4 6. Annexure-A4 order is erroneous and illegal. Hence, the Criminal M.C. 7. Heard; Sri.A. Renjith Narayanan, the learned Counsel appearing for the petitioner and Sri.P.V.Anoop, the learned Counsel appearing for the 2[nd] respondent. 8. The 2[nd] respondent had filed the complaint on the assertion that the petitioner had, in discharge of a legally enforceable debt, issued two cheques which were dishonoured due to insufficient funds in the petitioner's bank account. 9. It is specifically averred in the complaint that, at the time of issuing the cheques, the amount was shown both in words and figures and the dates were written on the cheques, and the cheques were signed by the petitioner in the presence of the 2[nd] respondent. 10. The defence of the petitioner is that she had only signed the cheques and had not filled in other details as reflected in the cheques. Before handing over the cheques, she had taken photostat copies of the same CRL.MC NO. 9105 OF 2023 5 and kept the copies in her possession. 11.In order to prove the petitioner's defence, she filed Annexure-A2 application to send the cheques to an expert, to ascertain whether the signatures on the cheques fully super-imposes with the signatures on the photostat copies of the cheques available with the petitioner and also to ascertain whether the writings on the cheques were subsequently written. 12. The 2[nd] respondent vehemently opposed the application by contending that the photostat copies of the cheques cannot be sent for expert opinion, interalia, because there is every likelihood of manipulation being done. 13. The learned Magistrate, after appreciating the rival contentions, by the impugned order dismissed the application. 14. I do not find any error or illegality in the learned Magistrate dismissing the petitioner's request for comparison of photostat copies of the alleged cheques, CRL.MC NO. 9105 OF 2023 6 which were purportedly taken by the petitioner before handing over to the 2[nd] respondent, with the original cheques already produced in Court. Nevertheless, I am of the definite view that the petitioner should be permitted to produce and mark the photostat copies of the cheques, which can be used as secondary evidence in view of Section 65 (a) of the Indian Evidence Act, especially since the original two cheques have already been marked in evidence. 15. This Court is conscious of the exposition of law by the Honourable Supreme Court in **Bir Sing vs. Mukesh Kumar** [2019 (1) KHC 774 SC] that, even if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars which will not invalidate the cheque, unless the accused sets a probable defence. 16. Notwithstanding the above laid law, the right of the accused to let in defence evidence cannot be foreclosed. CRL.MC NO. 9105 OF 2023 7 17. In the case on hand, admittedly the cheque was signed and issued by the petitioner. The disputed question is whether the 2[nd] respondent has subsequently filled up the cheques as alleged by the petitioner. The said question, if the learned Magistrate feels is relevant, can be compared under Section 73 of the Indian Evidence Act. Therefore, without expressing anything on the merits of the dispute, I am inclined to dispose of the petition in the following manner: - (i) Annexure -A4 order is confirmed. - (ii) The court below shall recall the petitioner, if she so desires and mark the photostat copies of the cheques in evidence, in accordance with law. - (iii) In case the two cheques are accepted in evidence as secondary evidence, the court below may, if it is convinced, make a comparison of the original cheques with the photostat copies of the cheques, if the same has any relevance for the determination of the complaint. CRL.MC NO. 9105 OF 2023 8 (iv) As the complaint is of the year 2019, the court below shall dispose of S.T.No.1120/2019 in accordance with law and as expeditiously as possible, untrammeled by any observation made in this judgment. Sd/- **C.S.DIAS, JUDGE** rkc/22.11.23 CRL.MC NO. 9105 OF 2023 9 ## **APPENDIX OF CRL.MC 9105/2023** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE COMPLAINT DATED 12/11/2019 WHICH LED TO S.T.NO.1120/2019 Annexure A2 TRUE COPY OF THE AFFIDAVIT ALONG WITH THE PETITION DATED 19/04/2023 Annexure A3 TRUE COPY OF THE COUNTER STATEMENT DATED 12/05/2023 FILED BY THE COMPLAINANT Annexure A4 CERTIFIED COPY OF THE ORDER DATED 23/09/2023 IN CMP NO.1564/2023 IN S.T.NO.1120/2019 PASSED BY THE LEARNED JFMC V, KOZHIKODE