The main legal point established in the judgment is that requests to send a cheque to an expert for examination must be bona fide and in line with the spirit and object of the provisions of the NI Act.

V. Ramkumar, J.

1. Crl. RP No. 683 of 2008 is filed by the accused and Crl. RP No. 2358 of 2008 is filed by the complainant in CC 267 of 1996 on the file of the JFCM, Muvattupuzha. The above case arose out of a private complaint alleging the commission of an offence punishable under S.138 of the Negotiable Instruments Act, 1881 ("the NI Act" for short) in respect of Ext. P1 cheque dated 31/08/1995 for a sum of Rs.3,50,000/-. In these revisions, both the complainant as well as the accused challenge the order dated 29/01/2008 passed by the learned Magistrate allowing the application (CMP No. 35 of 2008) filed by the accused for sending the cheque to the handwriting expert for detecting whether the signature and the other writings in the cheque were contemporaneously made. According to the accused, the learned Magistrate ought to have sent the cheque to the Forensic Science Laboratory, Thiruvananthapuram, as prayed for and not to a private expert. According to the complainant, the learned Magistrate should not have allowed the request of the accused to any extent whatsoever.

2. I heard Adv. Smt. K. V. Jayanthi, the learned counsel appearing for the accused and Adv. Sri. George Abraham, the learned counsel appearing for the complainant.

3. Adv. Smt. K. V. Jayanthi, the learned counsel appearing for the accused made the following submissions before me in support of Crl. RP 683 of 2008:

Even though this Court in Crl. Appeal 990 of 1998 had set aside the acquittal of the accused on the ground of non issuance of statutory notice, this Court was pleased to remand the case to the Trial Court after giving liberty to both sides to adduce evidence. The cheque in question was actually issued to the brother in law of the complainant as a blank cheque in connection with some other monetary transaction which was subsequently closed. The accused had laid his hands on the said cheque somehow or other and had misutilised the same with ulterior motives. A scientific examination of the cheque by an expert in the Forensic Science Laboratory will clearly show that the signature and the other writings in the cheque were not contemporaneously made. In Nagappa v. Muralidhar, 2008 (6) Scale 642 : 2008 (2) Crimes 219 (SC) : 2008 (5) SCC 633 : 2008 (2) KHC 810 (SC) also the request was to send the cheque for ascertaining the age of the writings in the cheque and it was observed by the Apex Court that what should be the nature of evidence to prove the defence should ordinarily be left to the discretion of the accused. In Aravindakshan Nair v. Essen Bankers, 2007 (3) KHC 295 : 2007 (2) KLD 22 : ILR 2007 (3) Ker. 312 : 2007 (2) KLJ 673 : 2007 (3) KLT 718 this Court in revision had directed the cheque to be forwarded to the handwriting expert for comparison. The learned Magistrate was convinced that the cheque in question required examination by an expert. However, the learned Magistrate erred in not sending the cheque to the Forensic Science Laboratory but instead, asking the accused to furnish details of the private expert to whom the cheque could be forwarded for expert opinion.

4. Advocate Sri. George Abraham, the learned counsel appearing for the complainant on the other hand submitted that the cheque in question should not have been forwarded to any expert for comparison.

5. The facts leading to the filing of these revisions can be summarised as follows:

The amount mentioned in Ext. P1 cheque dated 31/08/1995 is Rs.3,50,000/- which according to the complainant was borrowed by the accused from him. As against this, the case of the accused was that he had no transaction at all with the complainant and that the transaction which he had was with the brother in law of the complainant and the cheque in question was given as a signed blank cheque offered as a security and that transaction was subsequently closed. Initially on 04/08/1998 the Trial Court acquitted the accused on the ground of non service of the statutory notice. The said acquittal was set aside by