IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 28^TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946 CRL.MC NO. 3677 OF 2024 AGAINST THE ORDER/JUDGMENT DATED IN ST NO.2058 OF 2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, KOTHAMANGALAM PETITIONER/ACCUSED :

RAJEENA, AGED 44 YEARS W/O SHAHUL T.K, THOPPILPARAMBU HOUSE, MANNAM P.O, NORTH PARAVOOR, ERNAKULAM, PIN - 683520 BY ADVS.

VISHNU DAS SRUTHI DAS MARIA NEETHU T.J ANAGHA A.S. GINI GEORGE MAJESH P.B.

RESPONDENT/S:

1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031.

2 M/S. KLM NIDHI LIMITED, KLM TOWERS, COLLEGE ROAD, KOTHAMANGALAM.

REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL LATHEEF S/O ABDUL SAIDU, AGED 49 YEARS, KUNJATTU HOUSE, PALLARIMANGALAM P.O, PALLARIMANGALAM ERNAKULAM, PIN - 686671 BY ADV PEEYUS A. KOTTAM SRI. NOUSHAD K. A. (PP)

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

BECHU KURIAN THOMAS, J ......….............................................

Crl.M.C.No.3677 of 2024 …................................................

Dated this the 28^th day of May, 2024 ORDER Petitioner is the accused in S.T.No.2058/2019 on the files of the Judicial First Class Magistrate Court-II, Kothamangalam and is facing indictment for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881. During the course of trial, petitioner filed an application as CMP No.944/2024 to send the cheque in question, for examination to the Forensic Science Laboratory. The learned Magistrate, by the impugned order, dismissed the said application, against which this petition under Section 482 Cr.P.C. has been preferred.

2. I have heard Sri.Vishnu Das, the learned counsel for the petitioner, as well as Sri.Peeyus A.Kottam, the learned counsel for the 2^nd respondent and Sri.Noushad K.A., the learned Public Prosecutor.

3. The learned Magistrate while dismissing the application for sending the disputed cheque for forensic examination observed that, though the complaint was filed in December, 2018, the accused appeared only on 15.10.2022 and the complainant was examined on 26.06.2023. However, the accused sought time for cross examination of the witness and subsequently offered to settle the matter, due to which the case was adjourned. Later, he backtracked from his offer. Since the settlement as offered did not fructify, the trial court closed the evidence of the complainant and posted the case for questioning the accused under Section 313(1)(b) of Cr.P.C. on 19.10.2023. Thereafter as part of the defence evidence DW1 and DW2 were examined and when the case was posted for final hearing on 05.04.2024, the accused filed a petition under Section 311 to reopen the evidence. After going through the cross examination of PW1 and also after perusing the signature in Ext.P7 cheque as well as the other documents before the court, the learned Magistrate came to the conclusion that the application is filed as a delaying tactic, and therefore, dismissed the same.

4. On an appreciation of the above circumstances narrated by the learned Magistrate in the impugned order, it is evident that the petitioner had not raised any dispute on the signature appearing in the cheque until the case was posted for hearing. Even during the cross examination of the complainant, the defense had not disputed the signature on the cheque. In the absence of any dispute about the cheque, no purpose would be achieved by sending it for forensic examination. The attempt of the petitioner all along, as has been observed by the trial court, is intended to delay the matter; which inference cannot be found fault with. If the cheque is, at this stage, sent for forensic examination, invariably there will be a delay of several years, and therefore, it is incumbent upon the learned Magistrate to consider whether the application filed is bona fide or not.

5. Further, the accused had other mo