P.C. Hari v. P.C. Zachariah and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941** ## **Crl.MC.No.4463 of 2019** **AGAINST THE ORDER/JUDGMENT IN ST 331/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS -II,PATHANAMTHITTA DATED 13.06.2019** ## **PETITIONER/ACCUSED:** **P.C.HARI, AGED 48 YEARS S/O.CHAKRAPANI, PALAMOOTTIL HOUSE, PRAKKANAM MURI, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.B.KRISHNA KUMAR SRI.A.CHANDRA BABU SRI.DINESH THANKAPPAN** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 P.C.ZACHARIAH, VALIYAMELATHETHIL SANTHOSH BHAVAN, MEZHUVELY P.O., PATHANAMTHITTA, PIN-689 507. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682 031.** ## **OTHER PRESENT:** **PP C.K.PRASAD** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.4463 of 2019** **2** ## **ORDER** The petition on hand is moved challenging the order dated 13.06.2019 passed by Judicial First Class Magistrate Court II, Pathanamthitta (for short 'the trial court') in Crl.M.P.No.5074 of 2019 in S.T.No.331 of 2013. S.T. No.331 of 2013 is a prosecution launched against the petitioner under Section 142 of the Negotiable Instruments Act, 1881 (for short 'the Act'). 2. The impugned order was passed by the court below in an application filed by the accused in the above prosecution seeking to send Ext.P2 cheque for examination by the Forensic Scientific Laboratory and obtaining expert opinion on the authorship of the writings therein. The said application was dismissed by the trial court for the reason that the prayer of the petitioner is unwarranted in the factual circumstances of the case. The court below while dismissing the application has also relied on the dictum in _**Bir Singh Vs. Mukesh Kumar**_ ## _**[2019 (1) KLT 598 (SC)]**_ . 3. Aggrieved by the above order the accused has approached this Court in the petition on hand. It is urged by Sri.B.Krishna Kumar, the learned counsel for the petitioner **Crl.MC.No.4463 of 2019** **3** that the order under challenge is unjust, illegal, and perverse and calls for interference. According to him, an application was moved by him seeking to send the handwritings in Ext.P2 cheque for expert opinion to establish the stand taken by the accused in the prosecution that the entries therein were not filled by him. According to him, it is the fundamental right of the accused to defend his case and therefore he is entitled to seek for forwarding the disputed handwritings to the Forensic Scientific Laboratory for getting expert opinion. According to him his fundamental right to defend having been denied by the trial court, interference is required in the matter and he be permitted to forward his handwritings to the Forensic Scientific Laboratory. The learned counsel has also relied on the dictum in _**Nagappa v. Muralidhar [2008 (3) KLT 158 (SC)]**_ to rest his contention that the right to defend a case is a fundamental right of the accused. 4. In **Nagappa** supra, the Apex Court had held that an absolute right is not conferred on the payee or holder of a cheque under Section 20 of the Act to complete an incomplete negotiable instrument. The Apex Court also made the following observations : **Crl.MC.No.4463 of 2019** **4** - “(i) Only a _prima facie_ authority is conferred to the holder under S.20 of the N.I Act to complete an incomplete negotiable instrument. - (ii) The said _prima facie_ authority is subjected to conditions. - (iii) An accused should be given an opportunity to adduce evidence even in cases where presumptions can be raised against him under S.118(a) or 139 of the N.I.Act. - (iv) An accused's right to defend is a fundamental right. - (v) Court cannot insist on the nature of evidence sought to be adduced by the accused. - (vi) Court can only determine the _bond fides_ or relevancy of application filed under S.243(2), by the accused. - (viii) Wrong noting or non-mentioning of provisions of law would not be of any relevance.” 5. The Apex Court has also held when a contention of misuse of the cheque was raised that even in a case where presumption can be raised against the accused under Section 118(a) or 139 of the Act, an opportunity need be granted to the accused for adducing evidence in rebuttal thereof. 6. The applicant in the case cited has raised a specific contention that the cheque was signed in the year 1999 and the writings in the same have been filled up in the year 2004. The Apex Court found bona fides in the claim of the applicant in **Crl.MC.No.4463 of 2019** **5** the aforesaid circumstances and accordingly allowed his request to forward the handwritings for expert opinion. 7. Whether the petitioner as applicant has raised such a bona fide claim in the case on hand requires consideration. The pleadings in Crl.M.P. No.5074/2019 filed for the purpose are to the following effect : “The petitioner herein is the accused in the above numbered ST-331/2013. During cross-examination of PW1, PW1 deposed that the entries in Ext.P2 cheque except the signature were written before him. But, the petitioner/accused had not written the entries in Ext.P2 cheque. In the above circumstances it is highly necessary for the accused to sentExt.P2, the cheque in question, for comparison by Forensic Lab, Trivandrum along with the admitted and sample handwriting of the accused. Hence the petition.” 8. It is pertinent to note that the defence set up by the accused in the case on hand was that Ext.P2 was the cheque given as security for a transaction different from the one pleaded by the complainant and launching of prosecution by misuse of it. The signature in Ext.P2 is admitted. 9. The Apex Court has held in paragraph 8 of **Nagappa** supra that : “8. 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 **Crl.MC.No.4463 of 2019** **6** 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-s.(2) of S.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. is permitted to do so, steps therefore, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protracting the trial or summon witnesses whose evidence would not at all be relevant.” 10. It is clear from the above dictum that the courts must be vigilant to see that request of the nature was made by the accused, intending not to protract the trial. As already stated, unlike in **Nagappa** , the request was made by the petitioner in the application on hand, without revealing the circumstances warranting such an examination and therefore, it cannot be treated as a bona fide one. 11. The trial court has dismissed the application on the strength of the dictum in **Bir Singh** 's case supra, which is extracted hereunder. “37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139 makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he **Crl.MC.No.4463 of 2019** **7** adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability, it is immaterial that the cheque may have been filled in ny any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S.138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.” 12. In the factual scenario of the case on hand, the trial court is perfectly justified in declining to grant permission to the petitioner to forward the handwritings in Ext.P2 for expert opinion. The request of the petitioner is unfounded and therefore interference is totally unwarranted. The petition only deserves dismissal. In the result, Crl.M. C is dismissed. **Sd/-** ## **MARY JOSEPH** ## **JUDGE** NAB/ttb **Crl.MC.No.4463 of 2019** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE COMPLAINT IN ST NO.331/2013. ANNEXURE B THE TRUE COPY OF THE DEPOSITION OF THE PW1 (POWER OF ATTORNEY HOLDER OF THE 1ST RESPONDENT). ANNEXURE C THE TRUE COPY OF THE PETITION FILED BY THE PETITIONER ON 25.,05.2019 AS MP NO.5074/2019. ANNEXURE D THE CERTIFIED COPY OF THE ORDER PASSED IN MP NO.5074/2019 IN ST 331/2013 DATED 13.06.2019.** ## **//TRUE COPY//** P.S. TO JUDGE