Prince v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944 ``` ``` CRL.MC NO. 2505 OF 2022 ``` ``` AGAINST THE ORDER IN CMP No.7/2022 IN ST 79/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,IRINJALAKUDA ``` ## **`PETITIONER/ACCUSED:`** ``` PRINCE AGED 42 YEARS LALANA BHAVAN (NAISSERIYIL) ELANTHIKKARA, PUTHENVELIKKARA, PARAVUR TALUK PIN – 683 594 BY ADV RAJIV NAMBISAN ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682 031 2PRADEEP AGED 54 YEARS THARAMEL HOUSE, MALA PO, MALA PANCHAYATH, THRISSUR DISTRICT, PIN - 680732 R2 BY ADV SANTHOSH M.J. ``` ## **`OTHER PRESENT:`** ``` PP SRI V S SREEJITH ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. No. 2505 of 2022 -:2:- ## O R D E R Dated this the 1[st] day of July, 2022 This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking to quash an order passed by Judicial First Class Magistrate-III, Irinjalakuda in CMP No.7/2022 in ST No.79/2018 and to allow CMP No.7/2022 by issuing a direction to the court below to send the disputed cheque for expert analysis as prayed for therein. The petitioner is the accused in ST No.79/2018. CMP No.7/2022 was filed by the petitioner under Sections 45 and 73 of the Indian Evidence Act, 1872. 2. The allegation against the petitioner was that he has committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’). The accused denied the accusations in the complaint filed to launch the prosecution against him and thereupon the trial was proceeded with. After closure of the evidence of the complainant, the accused was questioned under Section 313(1) (b) Cr.P.C on the basis of the incriminating circumstances brought Crl.M.C. No. 2505 of 2022 -:3:- against him by the complainant in evidence. After closure of the examination under Section 313(1)(b) Cr.P.C, the case was posted for adducing defence evidence. The accused filed CMP No.7/2022 seeking for a direction to forward Ext.P1 cheque to the Research Director for NA analysis, Bhabha Atomic Research Centre 18, V.N. Purva Road, Borbadevi Nagar, Deonar, Anushakthi Nagar, Mumbai, Maharashtra-400 094, for Neutron Activation Analysis (for short ‘NA analysis’) to determine the age and authorship of the date seen in Ext.P1 cheque and other entries in the disputed cheque. 3. The respondent has filed objection in the application stating that the petition is not maintainable. According to him, a case was not raised by the accused in the application that Ext.P1 cheque was given prior to the transaction referred to in the complaint. Evidence was not adduced from the side of the accused to prove his allegations. According to him, the contention of the petitioner will have basis if he has taken proper steps for analysis in the year 2015 itself and the petition filed in the year 2022 is a belated one. It is further contended that the accused being an advocate by profession, it is improbable that a Crl.M.C. No. 2505 of 2022 -:4:- cheque would be issued by him without mentioning the date therein. The court below heard both sides and considered the issue whether the petition is allowable. The court below found that the prayer in the petition is devoid of merits and dismissed it by the order assailed in the petition on hand. 4. According to Sri.Rajiv Nambisan, the learned counsel for the petitioner, the disputed cheque was sought to be sent for analysis to ascertain the age of the writing by which the date in the cheque was put. Admittedly of him, except the date, all other entries had been put by the petitioner himself at the time when the disputed cheque was issued as security in a previous transaction. According to him, the opinion of the expert regarding the age of the writing by which the date is put in the cheque is very much relevant for rebutting the presumption stands attracted in favour of the complainant. In the above circumstances, the order assailed is sought to be quashed and a direction be issued to the court below to forward the disputed cheque for analysis and to get an opinion on the age of the ink by which the date was written in the cheque. Crl.M.C. No. 2505 of 2022 -:5:- 5. According to the learned counsel, the main reason for dismissal of the application was that the facility for ascertaining the age of the writing (ink) is not available. According to him, the court below has taken the view based on the dictum laid down by a Single Bench of this Court in Kuriakose C.T. v. Joseph and another [2018(1) KHC 48]. The learned counsel has also relied on the dictum in Namineni Audi Seshaiah v. Numburu Mohan Rao [2019 KHC 2997] to contend that a facility for determining the age of the ink is available on N.A. analysis at Bhabha Atomic Research Centre, Mumbai which is a central Organisation. The dictum cited is based on the dictum of the High Court of Hyderabad. 6. This Court has gone through the order assailed and found that, the above was not the main reason why the application filed by the petitioner was dismissed by the order assailed. The reasons for dismissal of the application was incorporated in paragraph 8 which is extracted hereunder : “8. Upon perusing the defence set up by the accused, it is evident that he did not take a specific contention that the age of the date in Ext.P1 cheque and the other writings are different. His contention is that the ink used for writing the date and other entries are different. He had also taken another contention that Crl.M.C. No. 2505 of 2022 ## -:6:- there was no date in Ext.P1 cheque at the time when he handed over it to the complainant. At the time when the matter was heard, the learned counsel for the petitioner submitted that he did not know whether the Research Director for N.A. Bhabha Atomic Research Centre 18, Mumbai is conducting such kind of examination so as to find out the age of the writings. He submitted that he could collect and submit those details on the next posting date. However, he did not produce any such information to the court as to whether Bhabha Atomic Research Centre, Maharashtra is conducting scientific examination to find out the age of an ink used for writing a document. Moreover, the Honourable High Court while considering similar matter has held that there is no scientific and technical facilities available in India to scientifically determine the age of the handwriting and signatures in a cheque (see, Kurakose C.T. v. Joseph and Another (2018 (1) KHC 48). In these circumstances, it is found that no purpose will be served by sending Ext.P1 cheque for the purpose of ascertaining the age of the date and other entries in Ext.P1 cheque. The petition, therefore fails. Point No.1 is found against the petitioner and it is answered accordingly.” It is found from the above extract that the petitioner herein has raised a doubt regarding the availability of the facility for ascertaining the age of the ink and accordingly he was directed to furnish the details of the Laboratory on the next posting date. But he did not produce the details called for on the day scheduled. In the above circumstances that the court below has relied on the dictum in Kuriakose supra and held that a facility for Crl.M.C. No. 2505 of 2022 -:7:- ascertaining the age of the ink with which the date of the writing in the cheque was not available. 7. It is pertinent to note that as the court below has observed that the petitioner failed to take a specific contention that the age of ink by which the date in Ext.P1 cheque and other writings were made are different. His contention was that the ink used for writing the date and other entries are different. Yet another contention taken by him was that date was not put in Ext.P1 cheque at the time when he handed over it to the complainant. These are also cited by the court below as reasons while dismissing the application. Therefore, it is incumbent upon this Court to see whether reasons are correct while dismissing the application. CMP No.7/22 was produced alongwith the records of the petition on hand. Upon perusal of the objection it is noticed that the petitioner has not stated therein the details of the transaction for which the disputed cheque was issued. The petitioner has only stated in the application that Ext.P1 cheque was given by him to the complainant by filling all entries except the entry of date. What was the nature of the transaction in Crl.M.C. No. 2505 of 2022 -:8:- which Ext.P1 was given without putting the date on it was not stated in the application. 8. It has been held by the Apex Court in Bir Singh v. Mukesh Kumar [2019 (1) KHC 774 (SC)] that when a signed cheque is issued by the accused voluntarily to the complainant, by doing so, he has given an implied authority to the latter to fill up the entries and present it. In the case on hand admittedly a signed cheque was issued much prior to the transaction in question but the petitioner failed to state in the petition what was the nature of the transaction wherein he had given the cheque, without putting the date. He had also no case that the liability under the cheque in the alleged previous transaction was discharged by him. His only case was that in the cheque with all entries except the date filled up, the complainant has put the date and presented it for encashment. The petitioner would have stated the details of transaction in which the disputed cheque was issued by him. The petitioner was a lawyer by profession and as rightly contended by the respondent, it is unlikely for him to issue a cheque without putting the date on it. Crl.M.C. No. 2505 of 2022 -:9:- 9. The petitioner has not sought for ascertaining the age of the signature in it. Admittedly signature was put by the petitioner. His case was that his signature was put in the disputed cheque much earlier to the transaction on the basis of which the prosecution in question was originated. When the signature in the cheque is admitted, as held by the Apex Court in Bir Singh supra, the presumption under Section 139 N.I. Act would operate in favour of the complainant. Then the onus will be shifted to the accused to rebut the presumption by establishing his defence. By allowing the application and forwarding the disputed cheque for ascertaining the age of the ink by which the date was put in the cheque, in the view of this court will not help the petitioner to rebut the presumption in the facts and circumstances of the case. Court below has rightly dismissed the application and has declined his prayer. In the result, Crl.M.C is dismissed confirming the impugned order. Sd/MARY JOSEPH, JUDGE. ttb Crl.M.C. No. 2505 of 2022 ## -:10:- ## **`APPENDIX OF CRL.MC 2505/2022`** ``` PETITIONER’S ANNEXURES : ``` ``` Annexure1APPLICATION FILED BY ACCUSED DATED 3.2.2022 Annexure2OBJECTION FILED BY COMPLAINANT DATED 10.2.2022 Annexure3ORDER OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, IRINJALAKKUDA DATED 18.3.2022 ```