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2024 Supreme(Online)(Ker) 85893
IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J
SANTHOSH.K.S. – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 6977/2024
SRI.VARGHESE C.KURIAKOSE, SMT.AMRITHA.J, SRI.KURUVILLA MATHEW, SRI.VIPIN C. VARGHESE
The court affirmed that expert opinions are not substantive evidence and can be scrutinized, allowing dismissal of applications intended to delay trials under Section 138 of the NI Act.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 528 - Petitioner challenged orders dismissing applications for forensic examination of cheques and summoning witnesses - The learned Magistrate found attempts to delay trial and dismissed applications. (Paras 1-19)
(B) Expert Opinion - The opinion of handwriting experts is not substantive evidence and must be scrutinized; the court is the ultimate arbiter. (Paras 10-11)
(C) Delay in Proceedings - Courts may reject applications intended to delay trials, especially in Section 138 cases. (Paras 17-18)
Facts of the case:
The petitioner, accused in multiple complaints under Section 138, sought forensic examination of cheques and to summon witnesses, claiming signatures were forged. The Magistrate dismissed these applications, citing attempts to delay proceedings.
Findings of Court:
The Magistrate's orders were well-reasoned and legally tenable, justifying dismissal of the petitions.
Issues: The main issues included the admissibility of expert opinions and the propriety of the petitioner's applications to delay the trial.
Ratio Decidendi: The court ruled that expert opinions are not conclusive and the trial court is entitled to reject vexatious applications aimed at delaying proceedings.
Result: All petitions are dismissed.
ORDER
Petitioner is an accused in seven different complaints filed under Section 138 of the Negotiable Instruments Act, 1881 9for short 'NI Act'). In these proceedings under section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ' BNSS '), he challenges three different orders issued by the learned Magistrate separately, in all seven cases.
2. In all these cases, the petitioner challenges three orders. Annexure A8 is an order dated 17-02-2024 dismissing petitioner’s application for sending the cheque to the Central Forensic Science Laboratory. Annexure A14 is an order dated 24-07-2024 dismissing petitioner’s application to summon a private person under Section 348 of the BNSS and to mark documents, while Annexure A16 is an order dated 12-06-2024 dismissing petitioner’s application to issue summons to the complainant to produce documents allegedly in his custody. As the impugned orders are issued in cases arising between the same parties and all of them were issued, though separately, but on the same dates and since the issues raised are also identical, these cases are disposed of by this common order.
3. S.T. No.18/2016, S.T. No.181/2016, S.T. No.39/2016, S.T. No.02/2016, S.T. No.38/2016, S.T. No.31/2016 and S.T. No.180/2016 pending before the Judicial First Class Magistrate Court-II, Thodupuzha are the complaints filed by the second respondent alleging the offence under section 138 of the NI Act committed by the petitioner. According to the complainant, petitioner had joined various chitties with the defacto complainant and after the chitties were priced and disbursed to him, he defaulted in repaying the amounts. Subsequently in repayment of the defaulted amounts, petitioner issued cheques, which, when presented for encashment, returned dishonoured for the reason ‘funds insufficient’. Despite the issuance of statutory notices, there was no response from the accused and hence the complaints were filed.
4. Since the accused denied the signature on all the cheques and contended that they were forged by the complainant and its staff, an application was filed on 09.09.2021 for sending the cheque for forensic examination. Though the applications were initially dismissed, subsequently, in Crl.M.C No.4371 of 2021 and connected cases, this Court directed the cheques to be sent for forensic examination. The Forensic Science Laboratory Kerala, by its report opined that the signatures on all the disputed cheques belonged to the accused himself
5. Being dissatisfied with the report from the Forensic Science Laboratory, petitioner filed an application to send the cheque for examination to the Central Forensic Science Laboratory. By the first of the impugned order dated 17.02.2024, (Annexure A8) the said application was dismissed. While so, the trial commenced and the examination of the complainant in all the cases was completed. A list of four witnesses was filed by the accused of which three of them were the Managing Director, Director and Manager of the complainant. In the meantime, petitioner is purported to have obtained an opinion about the signature on the cheque from a private expert by name Mr. Khan Sahib. Thereafter, an additional list of witnesses was filed including the Branch Manager of the complainant as well as the private handwriting expert. Though the petitioner sought for issuance of summons to all the witnesses mentioned in Annexure A12, the learned Magistrate issued summons only to two of the three witnesses mentioned in Annexure A12. Petitioner filed another application seeking a direction to the complainant to produce certain documents like the original chit agreement, copy of the chit agreement and copy of balance sheets filed before the Registrar of Companies. The learned Magistrate by the impugned orders dismissed all three applications. Aggrieved by the above dismissals, these petitions under Section 528 BNSS have been preferred.
6. I have heard Sri. Varghese C. Kuriakose, the learned counsel for th
