S Deepak v. State of Kerala & Ashok Kumar

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 CRL.MC NO. 5938 OF 2023 ``` ``` AGAINST THE ORDERS IN UNNUMBERED CRL REVISION PETITION OF 2023 DATED 06.07.2023 OF SESSIONS COURT, THIRUVANANTHAPURAM AND ORDER IN CMP 3843/2023 DATED 20.06.2023 IN C.C.NO.2375/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-XII, THIRUVANANTHAPURAM ``` ## **`PETITIONER/SOLE ACCUSED:`** ``` S DEEPAK, AGED 44 YEARS, VISHALAKSHI MANDIRAM, KILIMANOOR P.O, THRUVANANTHAPURAM, PIN - 695601 ``` ``` BY ADVS. MANSOOR ALI BIJITH S.KHAN ``` ## **`RESPONDENTS/COMPLAINANT:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 ASHOK KUMAR, AGED 41 YEARS, S/O VELLA DURAI, TC 24/1798, TENRA-152, ELAMKONAM NAGAR, THYCAUD, THIRUVANANTHAPURAM, PIN - 695014 BY ADV T.GOPALAKRISHNAN SR PP – K. DENNY DEVASSY`** ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON`** ``` 06.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C No. 5938 of 2023 ``` ``` 2 ``` ## **“C.R”** ## **ORDER** ## **Dated this the 6[th] day of February, 2024** This is a petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred as ‘Cr.P.C’ for convenience) to set aside the order in Unnumbered Criminal Revision Petition of 2023 dated 06.07.2023 on the files of the Sessions Court, Thiruvananthapuram and the order in C.M.P. 3842/2023 in C.C. No.2375/2019 dated 20.06.2023 on the files of the Judicial First Class Magistrate Court-XII, Thiruvananthapuram. The petitioner is the sole accused in C.C. No.2375/2019 on the files of the Judicial First Class Magistrate Court-XII, Thiruvananthapuram. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor appearing for the 1st respondent/State and the learned counsel appearing for the 2nd respondent/original complainant. 3. I would like to refer the parties in this Crl.M.C as 'accused' and 'complainant', for convenience. ``` Crl.M.C No. 5938 of 2023 ``` ``` 3 ``` 4. As on 06.12.2022, the complainant in C.C. No.2375/2019 on the files of the Judicial First Class Magistrate Court-XII, Thiruvananthapuram had approached this Court and filed petition under Article 227 of the constitution of India vide O.P. (Crl) No.675/2022 and sought direction to the Judicial First Class Magistrate Court-XII, Thiruvananthapuram to dispose of the said case within the time frame fixed by this Court. 5. As per the judgment dated 04.01.2023, this Court directed the learned Magistrate to dispose of C.C. No.2375/2019, within a period of seven months from the date of receipt of the judgment. Thereafter, the learned Magistrate tried the matter and recorded evidence of the complainant as PW1 and marked Exts.P1 to P11. On completion of the complainant’s evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. and he filed a statement also. 6. At this stage, the petitioner herein, who is the sole accused, filed C.M.P. No.3843/2023 before the trial court under Section 45 read with 75 of the Indian Evidence Act, to forward Exts.P1 and P2 cheques, Exts.P9 and P10 ``` Crl.M.C No. 5938 of 2023 ``` ``` 4 ``` acknowledgment cards and Ext.P11 reply notice allegedly sent by him to get FSL report on raising contention that the signatures therein were not that of the accused. 7. The learned Magistrate, as per the order dated 20.06.2023, addressed the contention and found that on comparison of the signatures in Exts.P1, P2, P9, P10 and P11, the same appeared to be similar and therefore no useful purpose could be achieved by sending those documents for expert opinion. Accordingly, the petition was dismissed. 8. Though, revision petition filed before the Sessions Court challenging the order dated 20.06.2023 in C.M.P. No.3843/2023 in C.C. No.2375/2019, the learned Sessions Judge rejected the revision on the ground that the revision petition was not maintainable against the said order. 9. It is interesting to note that the accused herein disputes his signatures in Exts.P1 and P2 cheques alleged to be issued by him to discharge the liability to the complainant. At the same time, he also disputes signatures in the acknowledgment cards, Exts.P9 and P10 and his own reply notice produced as Ext.P11. ``` Crl.M.C No. 5938 of 2023 ``` ``` 5 ``` 10. It is relevant to note that in the complaint itself the complainant averred that on receipt of notice on 07.11.2019, the accused issued reply notice on 15.11.2019 undertaking that he would repay the amount by paying Rs.50,000/- each on every Wednesday through NEFT bank account. It is surprising to see that the accused, who accepted the legal notice and who issued reply notice, now disputes the reply notice and the signature therein also. 11. On perusal of the copy of Ext.P11 reply notice, it was addressed to Adv.Santi George, who issued the legal notice of demand to the accused and the accused admitted payment as contended in the complaint as extracted herein above. In order to address the merit of the contention as regards to denial of issuance of reply notice and signatures in Exts.P1, P2, P9, P10 and P11, I have perused the copies of the said documents placed by the learned counsel for the petitioner and on no stretch of imagination one could say that the signatures in Exts.P1 and P2 as well as Ext.P11 are different and the same are exactly similar. 12. In a latest decision of the Apex Court reported in ``` Crl.M.C No. 5938 of 2023 ``` ``` 6 ``` **[2024 KHC 6044 : 2024 INSC 63 : 2024 LiveLaw (SC) 64] Ajitsinh Chehuji Rathod v. State of Gujarat,** the Apex Court considered the prayer at the option of an accused, who filed petition under Section 391 of Cr.P.C. before the Appellate Court to adduce additional evidence in the form of opinion of the hand writing expert after comparing the admitted signature of the accused and the signature as appearing on the disputed cheque. Similarly, another prayer therein was to examine the concerned officer of the Post Office from whom, notice under Section 138(b) of the Negotiable Instruments Act, 1881, received by the accused. While disposing the above Criminal Appeal, the Apex Court held as under: “Certified copy of a document issued by a Bank is itself admissible under the Bankers' Books Evidence Act, 1891 without any formal proof thereof. Hence, in an appropriate case, the certified copy of the specimen signature maintained by the Bank can be procured with a request to the Court to compare the same with the signature appearing on the cheque by exercising powers under S.73 of the Indian Evidence ``` Crl.M.C No. 5938 of 2023 ``` ``` 7 ``` Act, 1872. Thus, we are of the view that if at all, the appellant was desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque.” 13. Thus, as per the verdict of the Apex Court in **Ajitsinh Chehuji Rathod’s** case (supra) the accused could very well produce the certified copy of his specimen signature from the Bank and which is admissible under the Bankers’ Books Evidence Act, 1891, without any formal proof thereof, and to request the Court to compare the same with the signature appearing on Exts.P1 and P2 cheques by exercising powers under Section 73 of the Indian Evidence Act, 1872. 14. In the instant case, the learned Magistrate rightly compared the signatures in Exts.P1, P2, P9, P10 and P11 and found that the same are similar and there is no necessity to ``` Crl.M.C No. 5938 of 2023 ``` ``` 8 ``` get expert opinion by resorting to the procedure for the same. It is important to note that expert opinion is not substantive evidence and the same is only opinion evidence of corroborative nature and the same has no independent existence without the support of substantive evidence. The Courts have the power to ignore opinion evidence, if the same is against the substantive evidence. Further, the Courts also have the power to compare the disputed signatures and the admitted signatures in view of Section 73 of the Evidence Act as held by the Apex Court in **Ajitsinh Chehuji Rathod’s** case (supra). On appraisal of contentions raised by the accused herein, there is no reason to interfere with the order of the trial court, in any manner, since no valid grounds made to interfere with the order impugned. It is discernible from the facts of the case that the intention of the accused is to drag the trial of a case, which reached upto the stage of 313 examination, that too in view of the direction given by this Court in O.P.(Crl) No.675/2022, at the instance of the complainant who was aged 65 years during 2022 and now, no more. ``` Crl.M.C No. 5938 of 2023 ``` ``` 9 ``` 15. Accordingly, this Crl.M.C is found to meritless and is dismissed. The interim order of stay stands vacated. The trial court is directed to expedite the trial and complete the same, within a period of forty five days, from the date of receipt of copy of the order. Registry is directed forward a copy of the order to the trial court for information and compliance. ## **Sd/-** **A. BADHARUDEEN JUDGE** SK ``` Crl.M.C No. 5938 of 2023 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 5938/2023`** ## **`PETITIONER ANNEXURES :`** ``` Annexure A1THE TRUE COPY OF THE COMPLAINT IN CC 2375/2019 FILED BY THE 2ND RESPONDENT DATED 29.11.2019 ``` |**`Annexure A1`**|**`THE TRUE COPY OF THE COMPLAINT IN`**<br>**`CC 2375/2019 FILED BY THE 2ND RESPONDENT`**<br>**`DATED 29.11.2019`**| |---|---| |**`Annexure A2`**|**`TRUE COPY OF THE STATEMENT FILED UNDER`**| ||**`SECTION 313 DATED 09.06.2023`**| |**`Annexure A3`**|**`THE TRUE COPY OF THE APPLICATION (CMP`**| ||**`3843/2023) FILED UNDER SECTION 73 OF THE`**| ||**`EVIDENCE ACT DATED 09.06.2023`**| |**`Annexure A4`**|**`TRUE COPY OF THE ORDER DATED 20.06.2023 IN`**| ||**`CMP 3843/2023 IN CC 2375/2019 OF JUDICIAL`**| ||**`FIRST CLASS MAGISTRATE COURT XII,`**| ||**`THIRUVANANTHAPURAM`**| |**`Annexure A5`**|**`THE CERTIFIED COPY OF THE ORDER IN`**| ||**`UNNUMBERED CRL REVISION PETITION OF 2023`**| ||**`DATED 06.07.2023`**| |**`Annexure A6`**|**`THE TRUE COPY OF THE DEPOSITION OF`**| ||**`RESPONDENT 2 DATED 29/03/2023`**| |**`Annexure A7`**|**`THE TRUE COPY OF THE EXAMINATION OF ACCUSED`**| ||**`UNDER SECTION 313 CRIMINAL PROCEDURE CODE`**| ||**`DATED 09.06.2023`**| ## **`RESPONDENTS' ANNEXURES : NIL`**