P.K.Abdul Jalal vs M/S T.K. Basheer And Co
2021 Latest Caselaw 234 Ker

   Crl.MC.5684/2020               1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                  THE HONOURABLE MR.JUSTICE V.G.ARUN

   TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

                      Crl.MC.No.5684 OF 2020(A)

  AGAINST THE ORDER/JUDGMENT IN ST 25/2017 DATED 11-12-2020 OF
        JUDICIAL FIRST CLASS MAGISTRATE COURT-II, TIRUR


PETITIONER/S:

                P.K.ABDUL JALAL
                AGED 42 YEARS
                S/O.P.K. KHADER, PULIMOOTTIL HOUSE, PALLARIMANGALAM
                P.O, ADIVAD, KOTHAMANGALAM, PIN - 686671.

                BY ADV. SRI.N.K.MOHANLAL

RESPONDENT/S:

      1         M/S T.K. BASHEER AND CO
                7/682, E, T.K. BUILDING THUVVAKKAD, KANMANAM P.O,
                TIRUR, PIN - 676551, REPRESENTED BY MANAGING
                PARTNER T.K, MOHAMMED BASHEER.

      2         STATE OF KERALA,
                REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
                KERALA, ERNAKULAM, KOCHI- 31.


OTHER PRESENT:

                PP SREEJA V.

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD             ON
15.12.2020, THE COURT ON 05.01.2021 PASSED THE FOLLOWING:
     Crl.MC.5684/2020                  2



                               V.G.ARUN, J.
                -----------------------------------------------
                      CRL.M.C.No. 5684 of 2020
                -----------------------------------------------
               Dated this the 5th day of January, 2021

                                 ORDER

Petitioner is the 2nd accused in S.T.No. 25 of 2017 and connected

cases pending before the Judicial Magistrate of the First Class-II, Tirur. The

cases originated from complaints filed by the 1 st respondent against the

petitioner and another, alleging commission of the offence under Section

138 of the Negotiable Instruments Act. In the complaint it is alleged that the

petitioner, in his capacity as a Director of the 1 st accused Company, had

entered into an agreement with the complainant Company for supply of

cement to the concrete mixing unit of the 1 st accused Company. The

cement was supplied as per the agreement, but the accused failed to pay

the price of the cement and the commission agreed upon. The dispute was

later resolved and an agreement entered into between the complainant, in

terms of which the petitioner acknowledged the liability and issued four

cheques towards its discharge. The cheques were dishonoured on

presentation due to insufficiency of funds in the accused's account.

Thereupon statutory notices, demanding payment of the amount was

issued, which also failed to evoke any response and hence complaints

were filed. Since the cheques pertained to a common liability between the

same parties, the court ordered joint trial. During the course of such trial,

the petitioner filed an application seeking to send the cheques for expert

opinion regarding the entries therein. The said application stands rejected

by Annexure A1 order and hence this Crl.M.C.

2. The application seeking expert opinion was filed on the premise

that, during his cross examination, the complainant had testified that,

except the amount in figures and the date, all other entries in the cheque

were in his handwriting and that,the amount in figures and the date was

written by the petitioner. It is for disproving this fact and thereby

establishing the falsity of the case set up by the complainant that the

request was made to send the cheques for expert opinion.

3. The first respondent filed objection contending that the attempt is

only to protract the proceedings and that, no dispute having been raised

regarding the other entries in the cheque, including the amount entered in

words and the signature, no purpose would be served by obtaining expert

opinion regarding the date and the amount in figures.

4. The learned Magistrate accepted the objection raised by the first

respondent and dismissed the application finding that, obtaining

handwriting experts opinion would in no way help the court to arrive at a

just decision in the case.

5. Sri. N.K.Mohanlal, learned Counsel for the petitioner, assailed the

findings in the impugned order, contending that, by dismissing the

application the lower court had prevented the petitioner from letting in best

evidence. It is contended that the expert opinion would have aided the

petitioner in setting up rebuttal evidence.

6. A perusal of the impugned order reveals that the petitioner had

executed Exhibit P14 agreement acknowledging the liability and had

entered the particulars of the cheques issued towards discharge of the

liability in that document. The petitioner has not disputed his signature in

the agreement. Further, the petitioner has not disputed his signature in the

cheques or the amount entered in words. Therefore, as rightly found by the

learned Magistrate, no purpose would be served by sending the cheques

for expert opinion, other than delaying the trial unnecessarily.

In the result, the Crl. M. C. Is dismissed.

Sd/-

V.G.ARUN, JUDGE

vgs

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A1           CERTIFIED COPY OF THE ORDER DATED
                      11.12.2020 IN C.M.P. 302/2020.