T.I. Haseeb vs Shahin Sharaf on 2 December, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3936 of 2008()


1. T.I. HASEEB, S/O. MOHAMMED ISMAIL,
                      ...  Petitioner

                        Vs



1. SHAHIN SHARAF, KALLUMKAL HOUSE,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY ITS

                For Petitioner  :SRI.LIJI.J.VADAKEDOM

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :02/12/2008

 O R D E R
                            R. BASANT, J.
                  - - - - - - - - - - - - - - - - - - - - - -
                   Crl.M.C.No. 3936 of 2008
                  - - - - - - - - - - - - - - - - - - - - - -
            Dated this the 2nd day of December, 2008

                               O R D E R

The petitioner faces indictment in a prosecution under

Section 138 of the N.I. Act. The case is at the stage of defence

evidence. The cheque is for an amount of Rs.1.75 lakhs.

Signature in the cheque is not disputed. Notice of demand

though served did not evoke any response. At the stage of

defence, a contention is seen taken up that the handwriting in the

cheque is not that of the petitioner. The complainant, on the

contrary, asserted that the handwriting in the cheque is that of the

petitioner and that the petitioner had filled up the same in the

presence of the complainant.

2. The petitioner wanted the cheque to be sent to an expert

for resolution of the controversy as to whether the handwriting in

the cheque is that of the petitioner or not. The application was

opposed. It was contended that there was no bonafides and the

attempt is to protract the proceedings. The learned Magistrate

Crl.M.C.No. 3936 of 2008
2

initially and the learned Sessions Judge in revision came to the

conclusion that there is absolutely no justification in the prayer to send

the cheque to the expert.

3. The petitioner claims to be aggrieved by the decisions of the

learned Magistrate and the Sessions Judge. It is prayed that the extra

ordinary inherent jurisdiction under Section 482 Cr.P.C. may be

invoked to quash the impugned orders passed by the Magistrate and the

Sessions Judge.

4. I must alertly remind myself of the nature, quality and

contours of jurisdiction of this Court called upon to exercise the

powers under Section 482 Cr.P.C. I shall carefully avoid any

expression of opinion on merits on the controversy raised as to whether

the handwriting in the cheque is that of the petitioner or not. It is for

the learned Magistrate to consider that question in detail at the

appropriate stage. Suffice it to say that I take note of the totality of

circumstances in this case, particularly the fact that no contention was

ever raised before the complaint was filed that the cheque was not

issued by the accused to the complainant or that it was handed over to

Crl.M.C.No. 3936 of 2008
3

some one, from whose possession the complainant had clandestinely

come into possession of the same. I do not want to foreclose any

defence of the petitioner, but the conclusion appears to be inevitable

that the extra ordinary inherent jurisdiction under Section 482 Cr.P.C.

does not deserve to be invoked in the facts and circumstances of this

case.

5. This Crl.M.C. is accordingly dismissed. But I may hasten to

observe that the dismissal of this petition will not fetter the option of

the petitioner to take up all relevant contentions before the trial court

and the appellate court and also to challenge the impugned order in

appropriate proceedings later on.

(R. BASANT)
Judge
tm