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2010(1) Bankmann 225 (Mad.)
MADRAS HIGH COURT
C.T. Selvam, J.
P. Krishna Kumar —Petitioner
versus
Suji Benefit Fund rep by Managing
Director —Respondent
Criminal OP No. 549 of 2007
Decided on 1.12.2009
Counsel for the Parties:
For the Petitioner:Mr. A. Mohan, Advocate.
For the Respondent None.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Application by petitioner accused for sending cheque to handwriting expert for his opinion in respect of age and signatures of said cheque—Defence plea during trial was that cheque had been issued in 1997 for purpose of security and it was misused—Trial Court dismissed the application raising a suspicion as to whether petitioner himself had written upon the instrument in a different hand—Approach of Magistrate was erroneous —Accused deserved an opportunity to prove his case—Magistrate to refer the disputed cheque for examination. (Paras 3 and 4)
Result: Petition allowed.
C.T. Selvam, J.—This petition seeks to quash the order dated 7.7.2006 in C.R.P No.21 of 2006 passed by the learned additional Sessions Court Fast Track Court. I, Coimbatore and to direct the trial court to refer the Ex. Pl viz., Cheque No.010134 dated 8.11.2000 drawn on Punjab National Bank, Pollachi to the handwriting expert for giving his opinion in respect of age and signature of the said cheque so as to ascertain the real facts.
2. Heard the learned counsel for the petitioner. Although respondent had been served there is no appearance before this Court.
3. The petitioner is an accused in respect of case under Section 138 of Negotiable Instrument Act. The contention of the petitioner is that he had issued the cheque only for the purpose of security. The cheque has been issued as early as in the year 1997. The complainant respondent had misused such cheque and filled in the same much later, towards making out the complaint case. At the stage of defence, the petitioner filed a petition under Section 243 Cr.P.C seeking that the cheque be sent for examination by the expert towards ascertaining the age of the handwriting thereon. The Judicial Magistrate VII, I Coimbatore has dismissed the petition against which the petitioner moved the Additional Session Court/ Fast Track Court, Coimbatore which also was pleased to dismiss the matter. On perusal of the orders of the Judicial Magistrate, it is seen that he has raised a suspicion as to whether the petitioner himself could have written upon the instrument, in a different hand. This sort of suspicious approach of the Judicial Magistrate is clearly erroneous.
4. The order of the lower court reveals total non-application of mind. It merely states. Order pronounced. This, criminal revision petition is dismissed. This court finds that the orders of both the lower courts are erroneous. It is but just that the accused be given an opportunity to prove his case.
5. In the circumstances, the orders or the lower courts are set aside and this petition is allowed. The Judicial Magistrate VII, Coimbatore shall refer the disputed cheque for examination, on a fresh petition moved by the petitioner. Consequently, connected MP is also closed.
Petition allowed.
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