Thomas, S/o Joseph v. Abhilash C.S and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936** ## **Crl.MC.No. 2724 of 2014** ## **---------------------------** ## **CMP NO.149/2014 IN ST NO.120/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, UPPUTHODU VILLAGE, IDUKKI.** ## **PETITIONER/ACCUSED:** **----------------------------------** **THOMAS, S/O.JOSEPH, AGED 34 YEARS, PARAMUNDAYIL HOUSE, VIMALAGIRI P O, UPPUTHODU VILLAGE, IDUKKI.** ## **BY ADV. SRI.A.K.HARIDAS** ## **RESPONDENTS/DEFACTO COMPLAINANT:** **-------------------------------------------------------------** **1. ABHILASH C.S, S/O.SUGATHAN, CHERUVUKALAYIL HOUSE, PERUMPAIKKADU KARA, PEROOR VILLAGE, KOTTAYAM - 686 001.** **2. THE STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **R1 BY ADVS. SRI.R.SURAJ KUMAR** **SRI.A.NIZAM SRI.SUNIL J.CHAKKALACKAL SMT.V.BEENA SRI.SAJITH C.GEORGE SRI.V.K.UNNIKRISHNAN (KOLLAM) R2 BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MBR/** **Crl.MC.No. 2724 of 2014** **----------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: ------------------------------------------** **ANNEXURE A1:-TRUE COPY OF THE COMPLAINT.** **ANNEXURE A2:-TRUE COPY OF THE PROOF AFFIDAVIT FILED ALONG WITH THE CROSS EXAMINATION.** **ANNEXURE A3:-TRUE COPY OF THE CMP NO 149/2014.** **ANNEXURE A4:-TRUE COPY OF THE OBJECTION FILED TO ANNEXURE A3.** **ANNEXURE A5:-TRUE COPY OF THE ORDER DATED 2/5/2014 IN CMP NO 149/2014. RESPONDENT(S)' ANNEXURES: - NIL ---------------------------------------------** **/TRUE COPY/** **PS TO JUDGEM** **MBR/** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.2724 of 2014 .................................................. Dated this the 20[th] day of August, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioner challenging the order of dismissal passed by the Judicial First Class Magistrate Court-II, Ettumanoor in CMP.No.149/2014 in ST.No.120/2013 pending before that court under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner has been arrayed as the accused in ST.No.120/2013 pending before the Judicial First Class Magistrate Court-II, Ettumanoor, which was taken on file on the basis of a private complaint filed by the first respondent alleging offence under Section 138 of the Negotiable Instruments Act. The case of the complainant in the complaint was that the petitioner had some business transaction with him and in discharge of that liability, the petitioner/accused had issued the disputed cheque and he had denied the issuance of he cheque as claimed by the 1[st] respondent. The petitioner’s case was that he had given a blank signed cheque which was misused by the complainant and no such amount is due from him. When the complainant was examined as PW1, he had Crl.M.C.No.2724 of 2014 2 admitted that the hand writing in the cheque was in the handwriting of the accused and accused had brought the filled up cheque and singed the same in his presence. According to the petitioner, the writings in that cheque were not that of the accused and he had not admitted the execution of the cheque, as such. In order to prove that fact, he filed C.M.P.No.149/2014 for sending the disputed cheque for expert opinion. Even in the objection filed by the first respondent, his case was that it was written in the handwriting of the accused and according to him, issuance of the cheque has not been disputed and the signature in the cheque has been admitted. So it is not necessary to send the cheque for expert opinion and the learned Magistrate, accepting that contention, rejected the application by passing Annexure-A5 impugned order, which is being challenged by the petitioner by filing this petition. 3. Heard the counsel for the petitioner, first respondent and the learned Public Prosecutor. 4. The counsel for the petitioner submitted that the petitioner had denied the execution of the cheque and according to him, a blank signed cheque given as security for the business transaction has been misused and in spite of Crl.M.C.No.2724 of 2014 3 sending E-mail to not to present the cheque when he raised dispute regarding the payment, he had filled up the cheque and filed the complaint. So he had not issued the cheque as claimed by the complainant. So under such circumstances, in order to prove the case of the petitioner, it is necessary that the cheque will have to be sent for expert opinion. 5. On the other hand, the learned counsel appearing for the first respondent submitted that he had admitted the issuance of cheque and admitted the signature in the cheque. So according to the learned counsel, issuance of the cheque has been admitted. Even if there is change in the handwriting, that will not affect the complainant's case. He had not sent any reply to the notice issued as well. So under the circumstances, there is no necessity to send the cheque for expert opinion. The contention regarding liability of the petitioner to pay the amount etc can be considered by the court below on the basis of the evidence already available on record. So according to him, the order passed by the court below is perfectly justifiable and it does not call for any interference. 6. Heard the Public Prosecutor. 7. It is an admitted fact there was some transaction of Crl.M.C.No.2724 of 2014 4 sale of Flex Printing Machine by the first respondent to the petitioner for an amount of Rs.7,75,000/- and according to the complainant, when the petitioner did not pay the amount and when he made a demand, the accused had executed a cheque and given the cheque in discharge of the liability, which was denied by the petitioner. According to the petitioner, at the time when the machine was purchased, a blank signed cheque was given as security and when there is some defect found in the machine, he had sent E-mail to the complainant not to present the cheque and also filed a complaint before the Consumer Forum, which is pending. So, there is no liability to pay the amount and there is no possibility for him to issue the cheque as claimed by the complainant when PW1 had examined. So it cannot be said that the accused had admitted the execution of the cheque. 8. It is settled law that admission of signature in the cheque does not automatically amount to admission of execution of cheque. When he had a case that he had not issued the cheque as claimed by the complainant and the writings in the cheque were not his, then the burden is on the complainant to prove those facts. In order to prove this fact, the complainant Crl.M.C.No.2724 of 2014 5 was examined as PW1 and he had deposed that accused had brought the cheque and filled the same in his handwriting. He has mentioned that Ext.P1 order-ല� handwriting എഴ�ത�യത� പ�ത�യ�ണ� and he denied the suggestion that the blank signed cheque was filled ignoring the E-mail sent. In order to prove the handwriting in the cheque is not that of the accused and the cheque was not issued in the manner in which it was claimed by the complainant, the petitioner had filed a petition for sending the cheque for expert opinion. The complainant also filed an objection to the same stating that the cheque was written in the handwriting of the accused in his presence and it was singed in his presence. So in order to disprove the case of the complainant, the accused will be getting an opportunity to adduce evidence only under Section 243 of the Code and if such an application is filed for that purpose to prove his innocence, it has to be allowed. This was so held in the decisions reported in **Bindu v. Sreekandan Nair** (2007 (1) KLT 525) and **Kalyani Bhaskar v.Sampoornam** (2007(1) KLT SN 31 Case No.40) So, the observation made by the court below that the petitioner has not disputed the issuance of the cheque is not Crl.M.C.No.2724 of 2014 6 correct. Though he had admitted that he had given a blank signed cheque as security, but having a case that it was not issued in the manner in which it was claimed by the complainant, the petitioner must be given an opportunity to prove that fact. That can be proved only by sending Ext.P1 for expert opinion as he is denying the handwriting in the cheque. So the court below was not justified in dismissing the petition. So the petition has to be allowed and the disputed cheque has to be sent for expert opinion. So this petition is allowed and the impugned order passed by the court below in CM.P.No.149/14 in ST.120/13 dismissing the petition for sending Ext.P1 for expert opinion is set aside and the petition is allowed. The petitioner is directed to produce his handwriting during the relevant period when the cheque was alleged to have been executed as claimed by the complainant along with the standard handwriting before the court below within one week from date on which the case is now posted for appearance of the parties by this Court before the court below. Further, the petitioner has to take steps to pay the amount required for sending the cheque also within the time fixed by that court. If those things are complied with Crl.M.C.No.2724 of 2014 7 by the petitioner, then the lower court is directed to send the cheque for expert opinion to Forensic Science Laboratory, Thiruananthapuram for getting expert opinion on this aspect directing the Forensic Science Laboratory, Thrivuananthapuram to send the report within the period fixed by the court below so as to enable that court to dispose of that case expeditiously. Parties are directed to appear before the court below on 16.9.2014. Office is directed to communicate this order to the concerned court immediately. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.2724 of 2014 8