High Court Kerala High Court

Smt.Molly vs M.P.Sreekumaran on 20 August, 2008

Kerala High Court
Smt.Molly vs M.P.Sreekumaran on 20 August, 2008
       

  

  

 
 
  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.
            ==========================
                     Crl.R.P. No. 2674 of 2008
            ==========================
            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

CRL.R.P. NO. 2674/2008 : 2:

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

CRL.R.P. NO. 2674/2008 : 3:

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

CRL.R.P. NO. 2674/2008 : 4: