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2013 Supreme(Ker) 158
High Court of Kerala
K. RAMAKRISHNAN, J.
Rajan
Versus
T.K. Madusoodanakurup & Another
Crl. Rev. Pet. No. 861 of 2013
Decided on : 17-05-2013
For the Petitioner:T. Anil Kumar, K.B. Arunkumar, Advocates.
For the Respondents: Rajesh Vijayan, Public Prosecutor.
The accused's right to send disputed documents for expert opinion to prove his case cannot be denied, but the court may consider other materials and is not bound by the expert opinion.
Headnote:
Negotiable Instruments Act - Disputed cheque sent for expert opinion - Sections 138, 139 - Summary
Fact of the Case:
The case involved a private complaint filed under Section 138 of the Negotiable Instruments Act based on a dishonoured cheque. The accused claimed the cheque was issued as security for business transactions and was misused by the complainant.
Finding of the Court:
The court found that there was no standardised scientific method available for ascertaining the age of the writings on the cheque and dismissed the application for sending the disputed cheque for expert opinion.
Issues: The key issue was whether the accused had the right to send the disputed cheque for expert opinion to prove his case.
Ratio Decidendi: The court cited previous decisions and highlighted that the accused's right to prove his case through expert opinion cannot be denied, but in the absence of a standardised scientific method for ascertaining the age of the writings, the application for expert opinion was dismissed.
Final Decision: The revision petition was disposed of, and the lower court was directed to consider any independent evidence adduced by the accused and arrive at a just conclusion regarding the defence set up by the accused.
K. Ramakrishnan, J.
1. This revision petition was filed by the petitioner/accused in Criminal MP No.118/2013 in CC No.35/2012 on the file of the Judicial First Class Magistrate Court-III, Mavelikkara.
2. When the revision petition came up for admission, I felt, on considering the question involved, that there is no necessity to call for the records or to issue notice to the first respondent and thought that the revision itself can be disposed of at the admission stage and so, notice to the first respondent is dispensed with and the records are not called for.
3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor appearing for the second respondent. The case was taken on file on the basis of a private complaint filed by the first respondent herein under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act) on the basis of a cheque, alleged to have been given by the revision petitioner in discharge of a legally enforcible debt, on 7.2.2010. The case of the complainant was that the cheque was dishonoured for the reason "funds insufficient" and in spite of notice issued, intimating the dishonour and demanding payment of the amount, the revision petitioner did not pay the amount and so, he had committed the offence punishable under Section 138 of the Act and therefore, the complaint was filed.
4. The case was taken on file as CC No.35/2012 by the Judicial First Class Magistrate-III, Mavelikkara and summons was issued to the accused. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant was examined as PW1 and the documents produced by him, including the disputed Ext.P1 cheque, were marked. After closure of the complainant's evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought out in evidence against him and he further stated that the complainant was a whole-sale distributor of electronic home appliances and the revision petitioner is a retail dealer of electronic home appliances and he was having business transactions with the complainant in respect of supply of electronic goods, he had issued Ext.P1 as blank signed cheque to him on 7.2.2010 as security for the business transactions. He further stated that some of the electronic goods supplied to him by the complainant were defective and the same were replaced. The accused had paid the value of the goods on several occasions on instalment basis and by Ext.D1 invoice dated 7.7.2010, the entire amount was cleared as endorsed in Ext.D1 and this fact was admitted by the complainant also while he was examined as PW1. The blank signed cheque so given as security on 7.2.2010 was misused by the complainant and he has filed a false complaint against him.
5. In order to prove his contentions, he filed Criminal MP No.118/2013 before the lower court for sending the disputed Ext.P1 cheque for expert opinion to find out the age of the writing for filling up the cheque and also for putting the signature and to find out as to whether there is any interleniation made by inserting the number 1 before the number 2 in the date 7.2.2010.
6. The first respondent filed a counter, stating that the Criminal MP is filed only for the purpose of protracting the proceedings and the accused has no consistent case.
7. After hearing both sides and considering the overall circumstances brought out in evidence thus-far, the learned Magistrate, by the impugned order, dismissed the application, stating that there is no foolproof mechanism available to find out the age of the writings as claimed in the petition. Aggrieved by the same, the present revision has been filed by the revision petitioner, dissatisfied accused before the court below.
8. It is an admitted fact that there were busines
