IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3466 of 2008()
1. CHELLAN PUTHIYAPURAYIL MOIDEEN,
... Petitioner
Vs
1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR
... Respondent
2. THEKKE THAIVALAPPIL ABDUL SALAM HAJI,
For Petitioner :SMT.K.K.CHANDRALEKHA
For Respondent :SRI.P.U.SHAILAJAN
The Hon'ble MR. Justice R.BASANT
Dated :17/10/2008
O R D E R
R. BASANT, J.
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Crl.M.C. Nos.3466, 3645 & 3655 of 2008
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Dated this the 17th day of October, 2008
ORDER
The common petitioner in these three Crl.M.Cs. faces
indictment in a prosecution under Sec.138 of the Negotiable
Instruments Act by the respondent/complainant. The cheque
in question is one for an amount of Rs.2.58 lakhs. Signature in
the cheque is admitted. While the complainant contends that
the cheque was issued for the due discharge of a legally
enforcible debt/liability, the accused contends that the cheque
was not issued for the due discharge of legally enforcible
debt/liability; but was obtained under duress and coercion from
the accused when the complainant filed a complaint and the
parties were called before the Deputy Superintendent of
Police. It is the case of the accused that the original of Ext.D2
– agreement, was also executed in the presence of the Deputy
Crl.M.C. Nos.3466, 3645 & 3655 of 2008
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Superintendent of Police under duress.
2. Trial is almost complete. The matter has reached the
stage of defence evidence. Defence witnesses have also been
examined.
3. At that stage, the accused filed three applications under
Sec.311 Cr.P.C. The first was to recall the complainant/P.W.1 to
enable the accused to further cross-examine with the help of the
two documents (Exts.D3 and D4) which were not available when
the complainant was earlier cross-examined. The second
petition is to direct the complainant to produce the pass books
relating to the account which it is alleged that the complainant is
maintaining with a particular bank. Exts.D3 and D4 relate to
the same account. The prayer is that the complainant may be
directed to produce those pass books. The complainant, when
he was examined as P.W.1, had denied that those accounts are
maintained by him or that he had issued any cheque to the
accused or to the vendor of the accused in such accounts.
4. The third petition was to forward Ext.D2 agreement to
the expert to facilitate securing of an opinion on the question
Crl.M.C. Nos.3466, 3645 & 3655 of 2008
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whether the signature appearing in Ext.D2 is that of the
complainant. Ext.D2, as stated earlier, is an agreement which
was allegedly executed between the accused and the
complainant in the presence of the police official. The
complainant now asserts that he had not entered into any such
agreement. The accused submits that his signature was
forcibly obtained in Ext.D2. The original of Ext.D2 is not
available before court. The prayer is to send Ext.D2 to the
expert for comparison of the signature.
5. The learned Magistrate by the impugned order
dismissed all the three applications holding that the powers
under Sec.311 Cr.P.C. do not deserve to be invoked.
6. I have considered the arguments of both counsel.
Having considered all the relevant circumstances, I am satisfied
that the first petition to recall P.W.1 deserves to be allowed in
the interests of justice. The complainant is available in India.
He is appearing before court on all dates of posting, it is
submitted. Directing the complainant to take the witnesses
stand to enable his further cross-examination by the accused is
Crl.M.C. Nos.3466, 3645 & 3655 of 2008
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not going to cause any hardship, inconvenience and loss to the
complainant; whereas the accused had not so far got an effective
opportunity to cross-examine the complainant with the help of
Exts.D3 and D4 documents which he has procured subsequent to
the initial cross-examination of the complainant. In these
circumstances of this case, I am satisfied that the said prayer
deserves to be allowed.
7. The rejection of the prayer in the second petition to
direct the complainant to produce the pass books does appear to
me to be fair and just. At any rate, I am not persuaded to agree
that the powers under Sec.482 Cr.P.C. deserves to be invoked to
interfere with that order. The complainant has already stated
that he does not have such an account and he has not issued any
cheque on such account. The accused will now get an effective
opportunity to cross-examine the complainant with the help of
Exts.D3 and D4 on the basis of my finding earlier. In these
circumstances, I am satisfied that the rejection of the prayer to
direct the complainant to produce the pass books does not
warrant interference.
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8. Regarding the third petition to send Ext.D2 to the expert
for comparison, I am satisfied that the rejection of the said
prayer also does not warrant interference invoking the
extraordinary inherent jurisdiction. The complainant has
already asserted that he has not signed the original of Ext.D2.
The accused, though he asserts, that he had subscribed his
signature in Ext.D2 does not want to stand by Ext.D2. He also
disputes the same. The original of Ext.D2 is also not available.
It may not be impossible for an expert to hazard an opinion by
looking into the photocopy of the disputed document also. But I
am satisfied, in the facts and circumstances of this case, that the
rejection of the prayer to send Ext.D2 to the expert does not, at
any rate, warrant interference by invoking the jurisdiction
under Sec.482 Cr.P.C.
9. In the result:
(a) Crl.M.C.Nos. 3645 & 3655/08 are dismissed.
(b) Crl.M.C.No.3466/08 is allowed.
(c) The learned Magistrate shall ensure that the accused is
granted an opportunity to further cross-examine the
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complainant/P.W.1 with the help of Exts.D3 and D4.
10. Crl.M.C.No.3466/08 is allowed to the above extent.
11. The complainant shall appear before the learned
Magistrate on the next date of posting and get ready to face
cross-examination. The petitioner/accused shall also get ready
for cross-examination of the complainant on the next date of
posting. Every effort shall be made by the learned Magistrate
now to expeditiously dispose of the prosecution under Sec.138 of
the N.I. Act which, it is seen, is pending from 2005.
12. Hand over a copy of this order to the learned counsel
for the petitioner.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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