Remy Varghese vs State Of Kerala on 18 January, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 54 of 2007()


1. REMY VARGHESE, S/O. GEEVARGHESE,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REP. BY THE
                       ...       Respondent

2. ABDUL HAMEED @ ABDUL LATHEEF,

                For Petitioner  :SRI.K.SANIL KUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :18/01/2007

 O R D E R
                                  R.BASANT, J

                               ----------------------


                            Crl.M.C.No.54  of 2007

                         ----------------------------------------

                Dated this the 18th day of January   2007




                                    O R D E R

The petitioner is the complainant in a prosecution under

Section 138 of the Negotiable Instruments Act. It is his case

that the accused has been working as his agent for supplying

weighing scales to the customers. He allegedly used to collect

the weighing scales and supply it to the members of the public.

The cheques are allegedly issued towards the price of the

weighing machines supplied to the customers by the accused.

The prosecution is in respect of four cheques for a total amount

of Rs.62,500/-. The signature in the cheques is admitted. There

is no dispute regarding entries made in the cheque also. The

short contention raised is that the cheques were handed over as

security when the weighing scales were entrusted to the accused

for supply to customers. Notice of demand though duly received

and acknowledged did not evoke any response. When the

complainant was examined, an attempt was made to confront

him with a document, which was later marked as Ext.D5. The

cross-examination of the complainant was read to me in detail. It

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shows that Ext.D5 document was shown to the complainant/PW1

but it was not marked as he has not admitted the same.

2. Later, in the course of the trial, the accused examined

himself as DW1 and an employee of PW1 was examined as DW2.

It is the case of the accused that in Ext.D5, both PW1 and DW2

had made the entries. DW2 also denied the same.

3. The accused wanted the disputed document Ext.D5 to

be sent to the expert for comparison. Of course, the accused did

not stand by the contents of Ext.D5. He did not admit the

contents of Ext.D5 but according to him, the complainant had

prepared the said statement showing what according to the

complainant was the liability.

4. The accused wanted Ext.D5 to be sent to the expert.

According to him proof of Ext.D5 by adducing evidence of the

handwriting expert would reveal and establish the falsity of the

case of the complainant as to how the cheques were issued.

5. The learned Magistrate accepted the request of the

accused and proceeded to pass the impugned order. The

complainant claims to be aggrieved by the impugned order. The

attempt of the accused is only to protract the proceedings, it is

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contended. The interests of justice demand an expeditious

disposal and the unnecessary forwarding of Ext.D5 to the expert,

as directed in the impugned order would work out great injustice

and unnecessary protraction of proceedings, it is contended.

6. I have considered all the relevant inputs. It is true

that the accused does not stand by Ext.D5. He does not admit

that the net liability shown in Ext.D5 is correct but according to

him, the nature of the liability and the nature of the transaction

between the parties can be decided from Ext.D5 if the same is

properly proved.

7. I am satisfied, in these circumstances, that the

impugned order does not warrant interference. In the

circumstances of the case, I am satisfied that the discretion

exercised by the learned Magistrate under Section 254(2) Cr.P.C

to forward the disputed document to the handwriting expert

cannot be held to result in any failure or miscarriage of justice.

The mere fact that the accused does not stand by all the entries

in Ext.D5 is, according to me, not a sufficient reason to conclude

that the impugned order is not justified or that it leads to failure

or miscarriage of justice. Notwithstanding the inevitable delay

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which is bound to occur in the final disposal of the case, I am

satisfied that the discretion exercised by the learned Magistrate

does not warrant interference.

8. In the result, this Criminal Miscellaneous Case is

dismissed.

(R.BASANT, JUDGE)

jsr

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R.BASANT, J

C.R.R.P.No.

ORDER

21ST DAY OF JULY 2006