ORDER

Petitioner challenges an order rejecting an application under Section 311 of Cr.P.C for re-opening the evidence.

2. Petitioner is the accused in ST No.613/2017 on the files of Judicial First Class Magistrate’s Court, Ambalappuzha, which is a proceeding initiated by the second respondent under Section

138 of the Negotiable Instruments Act, 1881.

3. When PW1 was examined, he stated that the writings on the cheque are that of the accused and that the same were filled up in his presence. The contention raised by the accused is that, though he had signed the cheque, it was a blank cheque and the writings were filled up by somebody else. It is also the contention of the accused that the cheque was handed over for some other transaction and not for the transaction which is alleged in the complaint. After the complaint's evidence was closed and the statement of the accused under Section 313 of Cr.P.C was taken, an application was filed for comparison of the writings in the cheque by sending it to the forensic lab. The learned Magistrate by order dated 16.06.2023 in C.M.P. No.1196/2023 in ST No.613/2017 dismissed the said application.

4. Challenging the aforesaid order, a revision petition was filed as Crl.R.P. No.10/2023 before the Additional Sessions Court-III, Alapuzha. However, by order dated 16.11.2023, the said revision petition was also dismissed, against which this petition under Section 482 Cr.P.C has been preferred.

5. I have heard Sri. B.Pramod, learned counsel for the petitioner as well as Sri. K.A.Noushad, learned Public Prosecutor on behalf of the 1st respondent.

6. The proceedings under Section 138 of the Negotiable Instruments Act was instituted in the year 2017. The evidence of the complainant was completed and the accused was even questioned under Section 313 of Cr.P.C. It was at this juncture that C.M.P. No.1196/2023 was filed seeking to re-open the evidence to send the cheque for forensic examination. The learned Magistrate has observed that the signature on the cheque has been admitted by the accused as well as voluntarily handing over of the cheque to the complainant. Taking into consideration the nature of proof required and the presumptions available under law, the application was dismissed relying upon the decision in Santhosh Mathew and Another v. Santhosh and Another (2022 KHC 428). In the aforesaid decision, it was observed by this Court that the proof of authorship of handwriting, by which the entries in the disputed cheque have been filled up, is irrelevant when it is admitted by the accused as issued, duly signed and voluntarily. The onus lies on the accused in such a context to rebut the presumption by establishing that the disputed signed cheque has reached the hands of the complainant in a manner different from that alleged by the complainant. Opinion on authorship of handwriting by which entries in the cheque are filled up will not help the petitioner to discharge its onus to rebut the presumption on execution.

7. In the instant case, the petitioner intends, by sending the cheque to a forensic expert, to obtain an opinion on the authorship of the handwriting in the entries in the cheque, though he admits the signature and the voluntary handing over of the cheque.

8. If ultimately, the forensic report comes in favour of the claim of the petitioner, the same will not advance his cause, as, even if the writings are found to be inserted by somebody else, the same has no relevance. The decision in Bir Singh v.

Mukesh Kumar (2019) 4 SCC 197 is relevant in this context.

9. Apart from the above, the petitioner’s contention that the complainant had, in his evidence, deposed that the cheque was signed in his presence before handing it over will be disproved by the forensic report if obtained, also does not stand to reason as the filling up of cheque by a payee or any other person will neither invalidate the cheque nor advance the case of the petitioner.

10. Apart from the above, one of the certain ways of delaying