IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2674 of 2008()
1. SMT.MOLLY, W/O. LATE SUDHEER KUMAR,
... Petitioner
Vs
1. M.P.SREEKUMARAN, SAI SMRITHI,
... Respondent
2. STATE OF KERALA, REP.BY THE
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :20/08/2008
O R D E R
V. RAMKUMAR , J.
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Crl.R.P. No. 2674 of 2008
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Dated this the 20th day of August, 2008.
ORDER
Heard both sides.
2. The petitioner who is the accused in C.C. No. 35 of 2008
on the file of the Judicial First Class Magistrate, Kalpetta, which
was a prosecution under Section 138 of the Negotiable
Instruments Act, 1881, involving a cheque for Rs.1,50,000/-,
challenges the order dated 31.07.2008 passed by the Magistrate
dismissing his application (C.M.P. No. 853 of 2008) filed under
Section 45 of the Evidence Act requesting the court below to
forward the cheque in question to the handwriting expert to
ascertain whether the writings in the cheque are in the
handwriting of the revision petitioner/accused.
3. The above petition was filed at the stage of defence
evidence. As per the evidence now before court, the complainant
who is a retired General Manager of Wayanad District Co-
Operative Bank, had lent a sum of Rs.1,50,000/- on the request
of the accused, widow of late Sudheer Kumar and she gave
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Ext.P1 cheque to discharge the said liability. The complainant
examined as PW1, deposed that the name of the payee as well as
the date in the cheque were put by him as requested by the
accused. He was not specifically cross examined with regard to
the other writings in the cheque namely the amount written in
words and figures. As far as the signature is concerned, it is
admittedly that of the revision petitioner/accused. The learned
counsel for the revision petitioner would submit that the
suggestion put to PW1 that the cheque was not written by the
accused will take in the writings pertaining to the amount in
words and figures. I cannot agree. When the complainant
examined as PW1 has specifically stated that the name of the
payee and the date in the cheque were put by him, there should
have been cross examination specifically with regard to the
authorship of the writings regarding the amount. Having not
specifically cross examined PW1 with regard to the said aspect of
the matter, the petitioner was attempting to make good his
omission by alleging in the present application that the writings in
the cheque regarding the amount was not put by him. In spite of
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taking such a contention in the present application, the prayer in
the petition was to send the cheque to ascertain whether the
writings in the cheque were written in the handwriting of the
accused or not. She did not specifically cross-examine the
complainant regarding the writings of amounts in the cheque. It
was in this backdrop that the Magistrate who had a unique
advantage of seeing the witnesses and assessing their credibility,
was not inclined to allow the application. The stand taken by the
revision petitioner in the reply to the statutory notice was given a
go bye when she was examined under Section 313(1)(b) Cr.P.C.
This was also taken note of by the Magistrate while dismissing
the application. I see no reason to interfere with the discretion
exercised by the learned Magistrate. This revision is accordingly
dismissed.
Dated this the 20th day of August, 2008.
V. RAMKUMAR, JUDGE.
rv
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