The petitioner is the first accused in C.C. No.199/2003 of Judicial First class Magistrate, Ponnani. He and another accused are facing trial for offences punishable under sections 406, 408 and 420 r/w 34 I.P.C. The defacto complainant therein was examined in part as PW1. The accused are stated to be the near relatives of PW1. The case of the Prosecution is that while PW1 was away, engaged in the construction of his house, the management of the toddy business was entrusted with the accused. They were to keep the accounts. Subsequently, it was revealed that the accused misappropriated a sum of `13,69,283/- by manipulating the accounts of the business. It was also alleged that by forging documents it was made to appear that they had remitted the amount towards toddy worker’s welfare fund and without remitting that amount they committed criminal breach of trust to the tune of `1,00,236/-.

2. If is submitted by the learned counsel for the complainant that two witnesses have filed applications before the trial Court in advance, stating that the allegation in the complaint is not true. An application was filed by the Assistant Public Prosecutor, Grade I, before the Court below on 16.9.2010, stating that the specimen handwriting and signature of the second accused have to be obtained so as to send the same for expert opinion. That application filed under Section 311A Cr.P.C. was opposed by the accused contending, inter alia, that such a petition can be filed only at the stage of investigation and not during trial. It was also contended that in annexure F, Remand Report, the signature of the accused was obtained and as such there is no justification for the Assistant Public Prosecutor to file this petition at this stage. It is submitted by Adv. Sri. M.R. Venugopal, the learned counsel for the petitioner, that the signature in the Remand Report as well as Annexure F itself would be sufficient for comparison and hence there is no necessity to obtain their specimen handwritings and signatures. It is further submitted that the alleged defalcation or misappropriation took place in the year 1998 and so there would certainly be variations in the signatures and handwritings of the accused if taken now.

3. Advs. Sri. P. Santhosh Poduval, the learned counsel for the complainant, would submit that there is no guarantee or proof that Annexure F was actually written by the accused. That is only an application filed before Court. If at all it can only be held that it was signed by the accused. There can be no presumption that it was written by the accused. The remand report may contain the signature of the accused. That also will not serve the purpose. According to Sri. P. Santhosh, it is not only signature but also the handwritings of the accused which are required to be compared with the handwritings and signatures found in the account books and other connected records produced by the Prosecution.

4. Sri. Venugopal, learned counsel for the petitioner, submits that Annexure E Order passed by the learned Magistrate would show that there was no application of mind with regard to the contention raised by the petitioner. The finding that as per Section 73 of the Indian Evidence Act, the court can direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written, is taken exception to by the learned counsel for the complainant/petitioner, for, according to the learned counsel Section 73 is only an enabling provision as per which the Court can get handwritings and signature for comparison or for sending it to the expert. But that submission is resisted by Adv. Sri. Santhosh Poduval relying upon the decision of the apex Court in State (Delhi Admn.) v. Pali Rani reported in AIR 1979 SC 14 where it was held:

“A Court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Sessions, does not exceed its powe