Expert handwriting evidence is corroborative and insufficient alone for conviction; the existence of weak direct evidence invalidates the need for further expert analysis.

ORDER

Petitioner is the defacto complainant in C.C. 782/2013 on the file of the Judicial First Class Magistrate, Perinthalmanna. That case was taken on file on a private complaint preferred by the petitioner before the Judicial First Class Magistrate, Perinthalmanna which was forwarded to the police for registering a crime and investigation under Section 156 (3) of the Code of Criminal Procedure . After completing investigation, charge sheet was laid against the accused i.e., respondents 2 to 4 alleging offence under Section 420 of the Indian Penal Code . The short allegations against the accused are that on 12.08.2009, the first accused had received a sum of Rs.15 lakhs from the petitioner in the presence of the other two accused on the promise that, that money would be invested in share market and the petitioner would be given a return of Rs. 1,000/- for every one lakh and that the amount would be repaid after three months. An agreement was also executed by the first accused. Later, on the same conditions another sum of Rs.10 lakhs was collected from the petitioner after two -

three months, which was also endorsed in the agreement. Again, another sum of Rs.10 lakhs was also collected on the same terms and conditions which also was incorporated in the agreement. Thus, altogether Rs. 35 lakhs was collected from the petitioner. The amount was not paid nor any profit was given and that prompted the petitioner to prefer a complaint and on conclusion of investigation charge sheet was laid.

2. The trail commenced and three witnesses were examined on the side of the prosecution. PW1 and some of the witnesses were already examined. Thereafter, during the midst of trial, the Assistant Public Prosecutor filed a petition under Section 311A of the Cr.P.C. i.e., Annexure B petition praying the court to obtain the specimen signature of accused No. 1 and send the agreement to the Forensic Science Laboratory for examination. That was objected by the accused persons and by Annexure C order that objection was upheld and the application was dismissed. Aggrieved by the same, the petitioner preferred a revision before the Sessions Court, Manjeri which was dismissed as not maintainable in the light of the decision of the Hon'ble Supreme Court in Sethuraman v. Rajamanickam [2009(2) KLT Suppl.

511 (SC)] and now challenging Annexure C order the petitioner has moved this Court under Section 482 of the Cr.P.C.

3. I heard the learned counsel for the petitioner and also the learned Public Prosecutor.

4. The learned counsel, relying on the decisions reported inSubin A.S. v. State of Kerala and another [ 2012(1) KHC 6] andRadhakrishnan v. Saju Thuruthikunnel [ 2013 (4) KLT 859 ] argued that such an application is maintainable and the trial court should have obtained handwriting and signature of the first accused and should have sent it for expert report, but ignoring the relevant aspects, the court rejected the application which is liable to be reversed.

5. I heard the learned Public Prosecutor also. Even though notice was served on the other respondents, the fourth respondent alone entered appearance and I heard learned counsel on both sides.

6. The application was dismissed mainly on the consideration that even though PWs 1 to 3 were summoned by the court for examination, they did not turn up and thereafter, coercive steps under Sections 82 and 83 of the Cr.P.C. had to be taken for ensuring their presence. Secondly, that the statement given by them are contradictory and inconsistent. The version of independent witnesses is said to be wholly unsatisfactory and according to the learned Magistrate, the independent witnesses have ‘hopelessly spoiled to support the prosecution case’ and that the expert opinion is a very weak piece of evidence, so the court held that by obtaining such a report the prosecution case is not going to improve.

7. The learned counsel submitted that it is a case in which a big amount of Rs. 35 lakhs was paid by the petitioner to the firs