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2024 Supreme(Online)(KER) 36853
HIGH COURT OF KERALA
Kauser Edappagath, J
SAINABA. K – Appellant
Versus
SURAYYA – Respondent
OP(Crl.) 472/2023
K.RAJESH SUKUMARAN, SREEJITH CK
The court ruled that a complainant has the right to send a disputed cheque for forensic examination to ascertain the authenticity of the signature.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Dismissal of application to send cheque for forensic examination challenged - Complainant alleged that accused disputed signature and writings in cheque - Trial court dismissed application, finding no specific denial of signature - Court found trial court's dismissal incorrect as accused had consistently disputed signature - Application allowed, trial court's order set aside. (Paras 2-5)
(B) Right to prove signature - Complainant has the right to send cheque for scientific examination to ascertain authenticity of signature disputed by accused. (Paras 4-5)
| Table of Content |
|---|
| 1. dismissal of application (Para 2 , 3) |
| 2. disputed signature (Para 4) |
| 3. right to prove signature (Para 5) |
J U D G M E N T
Exhibit P5 order dismissing an application to send the cheque for forensic examination in a prosecution under Section 138 of the Negotiable Instruments Act (for short, 'the N.I.Act') is under challenge in this original petition.
2. The petitioner is the complainant and the respondent is the accused in STC No. 5 of 2019 pending on the file of the Judicial First Class Magistrate Court – V, Kannur (for short, 'the trial court'). The offence alleged against the accused is under Section 138 of the N.I.Act. The case of the complainant is that the accused issued Ext.P1 cheque towards the amount owed by her to the complainant. After the evidence of the complainant and the defence was over, the complainant filed CMP No.120 of 2023 to send Ext.P1 cheque for forensic examination to FSL.
The said application was dismissed as per Ext.P5 order.
3. I have heard both sides.
4. In CMP No. 120 of 2023, the complainant alleged that the accused had disputed the signature and writings in the cheque and therefore, it has to be sent for scientific examination to ascertain whether the signature and writings in the cheque were that of the accused. The accused opposed the application. In the counter statement filed to CMP No. 120 of 2023, the accused stated that the signature seen in Ext.P1 cheque was different from that of the signature of the accused found in the vakalath and acknowledgment card. However, the learned Magistrate dismissed the application, holding that there is no specific denial of the signature in Ext.P1 cheque by the accused. The said finding of the trial court appears to be totally incorrect. A perusal of the records would show that all along the accused has taken a contention that the signature and writings in the cheque are not of her. The accused was examined as DW1. Ext.P2 is the deposition. In Ext.P2, when a specific question was put to the accused showing the signature and writings in Ext.P1, she categorically answered that the signature and writings in the cheque were not of her. Hence, the accused has specifically disputed her signature in Ext.P1 cheque. The complainant has every right to prove the signature in Ext.P1 cheque by sending it for scientific examination. The trial court went wrong in dismissing CMP No. 120 of 2023.
5. In the light of the above findings, Ext.P5 is set aside.
CMP No. 120 of 2023 stands allowed.
The O.P .(Crl.) is disposed of as above.
