T.S. Madhavan v. Prabhakaran and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 Crl.MC.No. 1435 of 2008() ------------------------CC.583/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... PETITIONER: ACCUSED: -------------------- T.S.MADHAVAN, S/O.SANKU, THAIKKOOTTATHIL HOUSE, PATTANAM, VADAKKEKARA VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENTS: COMPLAINANT AND STATE: ----------------------------------- 1. PRABHAKARAN, S/O.MAKKAPPU, KANDAMPULLY HOUSE, CHOWALLUR DESOM, KANDANASSERY VILLAGE, THALAPPILLY TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB SRI.P.VIJAYA BHANU FOR R.1 SRI.M.REVIKRISHNAN FOR R.1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** ## **----------------------** Crl.M.C.No.1435 of 2008 ---------------------------------------Dated this the 29[th] day of May 2008 ## **O R D E R** The petitioner is the accused in three prosecutions all launched by the respondent/complainant under Section 138 of the Negotiable Instruments Act. The allegations are consolidated and one common trial has been held in these three cases. They relate to three cheques for the amounts of Rs.10,00,000/-, Rs.9,00,000/and Rs.1.5 lakhs. Cognizance was taken as early as in 1998. The accused has admitted his signature in the cheques; but has raised a specific contention that the cheques were handed over only as security and not for the due discharge of any legally enforcible debt or liability. It is submitted that the complainant had also accepted (that ascertain is of course disputed) that the cheques were issued as security. The trial court, relying on the decision in Sreenivasan v. State of Kerala 1999(3)KLT 849 had found the accused not guilty and acquitted. In appeals against acquittal which were preferred, this court took note of the change of law from Sreenivasan v. State of Kerala 1999(3)KLT 849 to ICDS LTD V. Beena Shabeer [2002(3) KLT 218 (SC). On that ground the acquittal was set aside and the case was sent back to the trial court for fresh disposal on merits “after affording opportunities to Crl.M.C.No.1435/08 2 adduce further evidence if they so desire”. The matter reached the trial court as C.M.P.No.1104/08 to send the cheques to the expert. Such application was stoutly opposed. It was contended that the transparent attempt was to delay and protract the proceedings. The learned Magistrate considered the contentions raised and by the impugned order rejected the application for forwarding the cheques to the expert. 2. The petitioner claims to be aggrieved by the impugned order. The learned counsel for the petitioner submits that on facts such an examination by the expert is absolutely essential. My attention has been drawn to the oral evidence of the complainant. The complainant had asserted that all the cheques were signed by the accused in his presence; but he had further stated that two of those three cheques were all written by the accused whereas in the third, a person who accompanied the accused had made all the entries as the accused had some disability for his hand at that point of time. The learned counsel contends that the disputed questions can be ascertained by ascertainment of the authorship of the handwriting atleast in two of those three cheques. In these circumstances, it is prayed that the impugned order may be set aside and the prayer of the petitioner allowed. Crl.M.C.No.1435/08 3 3. The learned counsel relies on the decision in T.Nagappa v. Y.R.Muralidhar [2008(3) Supreme 196] and prays that considering the nature and the magnitude of the disputes raised in this case, the petitioner may not be denied the opportunity to make relevant evidence available before the learned Magistrate. The counsel contends that the failure/inability of the petitioner to secure such evidence at the earlier stage may not be reckoned as significant or important in the light of the law which was applicable at that time, that is Sreenivasan v. State of Kerala 1999(3)KLT 849 and the later change of law. The learned counsel prays that in these circumstances the cheques may be directed to be sent to the expert. 4. Having considered all the relevant inputs I find merit in the challenge raised by the learned counsel for the petitioner against the impugned order. In coming to this conclusion, I take specific note of the statement of the complainant on oath which has been read to me that the handwriting in two of the three cheques are that of the accused though in the third one the signature alone was affixed by the accused. Ascertainment of the authorship of the handwriting in the said two cheques does in these circumstances appear to be necessary and relevant. Crl.M.C.No.1435/08 4 Denial of opportunity to adduce such evidence would affect the concept of a fair trial, I am satisfied. 5. The learned counsel for the complainant/respondent submits that if this court were pleased to grant the prayer, there may be a specific direction to the court below to ensure that the opinion is obtained expeditiously considering the fact that the prosecution is pending for the past one decade - from 1998. I find substance in that request by the learned counsel for the complainant/respondent. Appropriate directions can be issued. 6. In the result, this Criminal Miscellaneous Case is allowed. The impugned order is set aside. C.M.P.No.1104/2008 filed before the learned Magistrate is allowed. The request of the petitioner to forward the cheques to the expert is accepted and the learned Magistrate is directed to take necessary steps in that regard. The learned Magistrate must ensure that the report of the expert is obtained/secured and the case is disposed of finally as expeditiously as possible. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.1435/08 5 Crl.M.C.No.1435/08 6 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007