An accused in a dishonoured cheque case must substantiate their defense with timely evidence; failure to do so may result in dismissal of requests for expert opinions after trial closure.

ORDER

The petitioner is the accused in C.C.No.1993 of 2015 on the files of the Judicial Magistrate of the First Class-XII, Thiruvananthapuram. The case originated from a complaint filed by the 1^st respondent against the petitioner, alleging commission of the offence under Section 138 of the Negotiable Instruments Act, 1881 . The allegations in the complaint are to the following effect;

The complainant, an NRI, returned to Kerala and started a business in Thiruvananthapuram. In the course of his business, the complainant got acquainted and later developed friendship with the accused and her husband. While so, the accused and her husband borrowed an amount of Rs.15 lakh from the complainant and towards discharge of that liability, the accused issued a cheque for Rs.15 lakh. Contrary to the assurance of the petitioner that sufficient funds is retained in the account, the cheque, on presentation, was dishonoured for want of funds. In spite of issuing notice demanding payment of the cheque amount, the accused did not pay the amount or send a reply.

2. In the trial of the case, the 1^st respondent was examined as PW1 and the petitioner as DW1. During cross- examination of the 1^st respondent, questions and suggestions to the effect that the cheque was stolen by the 1^st respondent and presented after forging the petitioner's signature and making unauthorised entries were put to him. The 1^st respondent stoutly denied the suggestions and maintained that the cheque was issued towards repayment of the money borrowed. As the petitioner failed to adduce any further evidence, even after granting opportunity, the court below closed the evidence and posted the case for hearing to 06.03.2024. On 06.03.2024, the petitioner filed two applications, one to re-open the evidence and the other, to send the original cheque and postal acknowledgment card (Exts.P1 and P5) to a handwriting expert for opinion. By the impugned Annexures I and J orders, the learned Magistrate dismissed the petitions. Thereafter the petitioner preferred Annexures K and L applications, the former to re-open the evidence and the latter, to issue summons to the Post Master, Muttada Post Office, to produce the document showing the name of the Postman who had worked in the petitioner's earlier residential locality during the relevant period. The trial court dismissed the applications by Annexure O common order. Hence, this Crl.M.C challenging Annexures I, J and O orders.

3. The learned counsel for the petitioner submits that the consistent case of the petitioner is that the cheque was stolen by the 1^st respondent and presented after forging the petitioner's signature and entering other details. Reference is made to the suggestions and questions put to the witness. It is contended that the 1^st respondent having denied the suggestions, the only method to substantiate the defence case is to obtain an expert opinion on the signature and entries in the cheque after comparison of the disputed and admitted signatures of the petitioner. The petitioner will not be able to rebut the presumption under Section 139 of the Negotiable Instruments Act, unless the expert opinion is obtained. Reliance is placed on the decision of the Apex Court in Nagappa T. v. Y.R.Muralidhar [2008 (2) KHC 810] to contend that the nature of evidence is not a matter to be left only to the discretion of the court as it is the accused who knows how best to prove her evidence. According to the counsel, the trial court grossly erred in assuming the role of the expert and comparing the signatures in Ext.P1 cheque and Ext.P5 acknowledgment card with the signatures of the petitioner in her deposition and Section 313 statement to hold t