Rajan V.G v Joseph Mathew S/o Mathew and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942** ## **Crl.MC.No.4757 OF 2016** **AGAINST THE ORDER/JUDGMENT IN ST 49/2011 DATED 18-07-2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS II, PALA** ## **PETITIONER/PETITIONER/ACCUSED:** **RAJAN V.G** **VELLARAMKUNNEL HOUSE,KIZHAKKAMATTOM P.O.,KURUMANNU, MELUKAVU VILLAGE.** **BY ADV. SRI.P.C.HARIDAS** ## **RESPONDENTS/RESPONDENT/COMPLAINANT:** **1 JOSEPH MATHEW S/O. MATHEW, AGED 54 YEARS,KALLAKAVUMKAL HOUSE, KAYYOOR P.O.,KAYYOOR KARA, BHARANANGANAM VILLAGE.** **2 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF EKRALA, ERNAKULAM - 31.** **R1 BY ADV. SRI.MANUEL KACHIRAMATTAM R1 BY ADV. SMT.MERRY GEORGE** ## **OTHER PRESENT:** ## **SRI. K.B UDAYAKUMAR (P.P)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24-11-2020, THE COURT ON 27-11-2020 PASSED THE FOLLOWING:** Crl.M.C.No.4757 of 2016 2 ## **M.R.ANITHA, J.** ## **--------------------------------Crl.M.C.No.4757 of 2016** **--------------------------------Dated : 27[th] November, 2020** ## **O R D E R** Petition has been filed under Section 482 Cr.P.C. against the order in CMP No.76/2016 in S.T.No.49/2011 dated 18.07.2016 on the file of the Judicial First Class Magistrate Court-II, Pala. 2. Petitioner is the accused in a Complaint filed, alleging commission of offence u/s. 138 of the Negotiable Instruments Act.The prosecution case is that the petitioner borrowed an amount of Rs.85,000/- from the first respondent on 15.03.2009 and in discharge of the liability the cheque in question was issued. On presentation of the cheque it is alleged that it is bounced for the reason that 'funds insufficient' and thereafter statutory notice was issued and the complaint was filed. 3. After taking cognizance notice was issued to the petitioner/accused and thereafter PW1 was examined from the side of the first respondent and Exts.P1 to P5 were marked. During the course of examination of PW1, he deposed that cheque was filled up and signed by the petitioner in his own handwriting and he witnessed the same. Thereafter CMP No.612/2013 seeking Crl.M.C.No.4757 of 2016 3 to send Ext.P1 cheque for expert opinion was filed and that was allowed by the learned magistrate and the cheque was sent for expert opinion and the Assistant Director of State Forensic Science Laboratory, Thiruvananthapuram forwarded report. Copy of which is produced as Annexure A2. According to the petitioner due to want of sufficient standard writings in Annexure A2, it is stated that no definite opinion can be formed as to the authorship of the questioned writings. So the petitioner filed a petition seeking to remit back Annexure A2 report for further examination. But the learned Magistrate dismissed that petition by the impugned order. Hence the petitioner filed this Crl.M.C. seeking to set aside the order in CMP No.76/2016 in S.T.No.49/2011 dated 18.07.2016 on the file of the Judicial First Class Magistrate CourtII, Pala and remit Annexure A2 report to the State FSL for further report or to direct the learned Magistrate to reconsider Annexure A3 petition. 4. Notice was issued to the respondents. Sri. Manuel Kachiramattom is appearing for first respondent and second respondent appeared through learned Public Prosecutor Smt. V. Sreeja. Heard both sides. 5. The learned counsel for the petitioner would contend that the expert expressed the helplessness in arriving at a Crl.M.C.No.4757 of 2016 4 definite opinion regarding the authorship of questioned writings due to want of sufficient standard writings in order to secure required writing characteristics. If more standard writings are made available the required number of writing characteristics can be examined. He would also contend that actually a full diary containing the writings of the petitioner had been produced before the court and from that only some pages have been sent to the expert and if the entire diary had been send the expert could have arrived at a definite opinion with regard to the questioned writings. So the learned counsel requests to give an opportunity to the petitioner to send more documents containing the writings of the petitioner for enabling the expert to form an opinion of the questioned writings. 6. The learned counsel for the first respondent on the other hand would contend that the case itself has been filed in the year 2011 and once at the request of the petitioner the cheque was sent to the FSL for expert opinion. Now the petitioner again want to send the same again to the expert which will not serve any purpose. He would vehemently contend that the report of the expert itself would state that the petitioner did not have any significant writing characteristics to evaluate and form a definite opinion regarding the authorship. So even if some more Crl.M.C.No.4757 of 2016 5 documents are sent for comparison, no purpose would be served. ## 7. On perusing Annexure A2 report of the expert, it is ## seen that the expert has been finally concluded as follows: “On examination the questioned writings show some similarities with that of the standard writings in the nature of writing the letters/figures J, T, M, w, s, 1, 5 etc. Several writing features between the questioned and the standards cannot be reasonably explained as wide range of variation is observed in the writing evidence. The actual writing habits of the writer could not be thoroughly evaluated from the standards. Thus there do not have sufficient number of significant writing characteristics to evaluate and form a definite opinion regarding the authorship. In the circumstances it has not been possible to arrive at any definite conclusion regarding the authorship of the red enclosed questioned writings marked Q1 in comparison with that of the standards supplied.” The above opinion of the expert would show that even though questioned writings showed some similarities with that of the standard writings with respect to some letters, several writing features between the questioned and standards cannot be explained by the expert since wide range of variation is observed in the writing. It is stated by the expert that there do not have sufficient number of significant writing characteristics to evaluate and form a definite opinion regarding the authorship. So that would be an indication to infer that the standard writings already sent do not have sufficient number of significant writing Crl.M.C.No.4757 of 2016 6 characteristics to evaluate and form a definite opinion regarding the authorship. Report also says that wide range of variation is observed in the writings and actual habit of the writer could not be thoroughly evaluated. The report further would say that admitted standard writings are relatively freely written whereas the specimen writings show conscious nature and there is wide range of variation between the admitted and standard writings in the style of writing. So it cannot be definitely concluded that even if standard writings are again send the expert would be able to evaluate and form a definite opinion regarding the authorship of the writings since the petitioner do not have sufficient number of writings characteristics. 8. The case is of the year 2011 and the cheque amount is also Rs.85,000/-. The learned counsel for the first respondent in this context also took my attention to Bir Singh v. Mukesh Kumar [2019(1) KLT 598 (SC)] and would contend that even a blank cheque leaf, voluntarily signed and handed over by the accused, towards some payment would attract presumption u/s. 139 of the N.I.Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 9. But the learned counsel for the petitioner would contend that, that was a case in which the accused had a definite Crl.M.C.No.4757 of 2016 7 case that a signed blank cheque was handed over by the accused. But in this case the first respondent/complainant during crossexamination categorically stated that the writings in Ext.P1 cheque is made by the accused in front of him and hence the dictum laid down in the above decision is not squarely applicable in the present case. Anyway, in this case also, the signature in the cheque seems to have been admitted by the accused and the dispute is with regard to the writings in the cheque. Since the case is pending consideration before the trial court, I do not want to make any observation in the above regard. But in view of the discussion made above, I do not think that the dismissal of the CMP No.76/2016 by the court below is an abuse of process of court warranting any interference by this court by exercising the extraordinary power vested with this court u/s. 482 Cr.P.C. In the result, Crl.M.C. is found to be devoid of any merit and hence the same is dismissed. ## Sd/- **M.R.ANITHA** **JUDGE** **xshg** Crl.M.C.No.4757 of 2016 8 ## APPENDIX ## PETITIONER'S ANNEXURES: **A1** **CERTIFIED COPY OF THE DEPOSITION OF THE 1ST RESPONDENT.** **A2** **TRUE COPY OF THE REPORT DT. 30.10.2015 OF THE FSL.** **A3 TRUE COPY OF THE CMP NO. 76/16.** **A4 TRUE COPY OF THE OBJECTION TO ANNX. A3.** **A5** **CERTIFIED COPY OF THE ORDER DT. 18.7.2016 IN CMP NO. 76/16 INST NO. 49/11 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, PALA.**