IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 18 of 2011()
1. K.C.SUDHEENDRAN, SUB ENGINEER,
... Petitioner
Vs
1. GOPAKUMAR, S/O.GOPI,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.S.SANAL KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/01/2011
O R D E R
THOMAS P.JOSEPH, J
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Crl.M.C.No.18 of 2011
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Dated this the 19th day of January 2011
O R D E R
Petitioner is accused in C.C.No.821/2007 of the J.F.M.C,
Ambalappuzha facing trial for offence under Section 138 of the
Negotiable Instruments Act (for short “the Act”). According to
the 1st respondent, petitioner owed Rs.1,50,000/- to him and for
discharge of that liability, issued Ext.P1 cheque, which was
dishonoured for insufficiency of funds.
2. Petitioner denied the allegation and claimed that he
had given the cheque as a security to the SNDP branch,
Neerkunnam when he availed a loan from that institution. That
cheque was misused by the office bearers of the SNDP branch.
3. When the 1st respondent was examined as PW1, he
was cross-examined with respect to the signature and hand
writing in Ext.P1. In cross-examination he stated that petitioner
signed the cheque and gave it to him. Later, he stated that
petitioner wrote the cheque. Thereon, petitioner filed
C.M.P.No.4983/2010 to send the cheque to the expert for
opinion. That application was dismissed by the learned
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Magistrate vide order dated 08/02/2010 which is challenged in
this proceedings. The learned counsel, placing reliance on the
decision in Nagappa v. Muralidhar [2008(3) KLT 158 (SC)]
and in particular paragraphs 7 and 8 contends that valuable
right of petitioner to defend the case has been denied by the
learned Magistrate vide the impugned order.
4. I have been taken through the deposition of the 1st
respondent as PW1. Learned Magistrate observed in the
impugned order that a reading of the deposition would show that
what 1st respondent stated in cross-examination is that petitioner
signed the cheque in his presence. Learned counsel would, of
course, contend that a reading of deposition of 1st respondent
would show that according to him the cheque was written and
signed by petitioner in his presence. But, on going through the
deposition, I do not find any such positive statement by the 1st
respondent that petitioner wrote the cheque in his presence. It
is in that view that learned Magistrate has disallowed prayer to
send the cheque for examination.
5. True, in the decision cited, the Supreme Court stated
that there must be a fair trial and that the right of the accused
Crl.M.C.No. 18 of 2011 3
for that cannot be denied. But any decision has to be understood
on the facts and circumstances of the case. This Court in Baby
Thomas v. Paul [2007(4) KLT 738] has held that any and
every request to send the cheque to the expert is not required to
be entertained. Having regard to the circumstances, I find no
reason to interfere with the impugned order at this stage. But, I
make it clear that this order will not prevent petitioner from
raising the question in an appeal that may be preferred against
judgment of learned Magistrate.
6. With the above observation, this petition is closed.
(THOMAS P.JOSEPH, JUDGE)
jsr
// True Copy// PA to Judge
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THOMAS.P.JOSEPH,J.
Crl.M.C.No. of 200
ORDER
19/01/2011