Sindhu Jose vs Rony C.J
2021 Latest Caselaw 23574 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
  TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                        CRL.MC NO. 266 OF 2015
   [AGAINST THE ORDER IN M.P.NO.12961/2014 IN CC 191/2011 DATED
26.11.2014 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS ,KUNNAMKULAM]
PETITIONER/ACCUSED:

            SINDHU JOSE
            AGED 43 YEARS
            D/O.PERUMATTIL FRANCIS, PROPRIETOR MARIA FUELS,
            PULLAZHI VILLAGE, THRISSUR - 680 012.

            BY ADV SRI.N.K.MOHANLAL



RESPONDENTS:

    1       RONY C.J
            AGED 39 YEARS
            CHITTILLAPPILLI KUTTEKKARA, ANJOOR VILLAGE, VADAKKEVILA
            P.O., KOLLAM, PIN - 690 010.

    2       STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH
            COURT OF KERALA ERNAKULAM


OTHER PRESENT:

            R2 BY PP-SRI.SUDHEER GOPALAKRISHNAN




     THIS   CRIMINAL   MISC.   CASE   HAVING   COME   UP   FOR   HEARING   ON
30.11.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.M.C.No.266 of 2015                     2

                                   O R D E R

The petitioner is the accused in C.C.No.191 of

2011 on the file of the Judicial First Class

Magistrate Court, Kunnamkulam. The aforesaid case is

registered against the petitioner on the basis of a

complaint submitted by the 1st respondent for the

offence under Section 138 of the Negotiable

Instruments Act.

2. The case of the 1st respondent is that a

cheque issued by the petitioner herein for an amount

of Rs.3 lakhs was dishonoured for want of sufficient

funds. A statutory notice was issued to the

petitioner demanding the said amount and later a

complaint for the offence under Section 138 of the

Negotiable Instruments Act was submitted before the

learned Magistrate.

3. The case of the petitioner/accused before the

trial court was that the cheque was collected by the

1st respondent as a blank cheque which was later

filled up by somebody else and the same was presented

for encashment. According to him, no legally

enforceable debt is in existence. To prove the same,

the petitioner filed M.P.No.12961/2014 in

C.C.No.191/2011 for sending the cheque for

handwriting expert and to examine whether the

handwriting contained in the cheque was that of the

petitioner or not. The aforesaid application was

rejected as per Annexure-A3 order dated 26.11.2014.

This Crl.M.C. is filed challenging the same.

4. Heard Sri. N.K.Mohanlal, the learned counsel

for the petitioner and Sri. Sudheer Gopalakrishnan,

the learned Public Prosecutor for the 2nd respondent.

5. The contention of the learned counsel for the

petitioner is that, the learned Magistrate dismissed

the application on the ground that, as the signature

on the cheque is admitted by the petitioner/accused,

it is not necessary to send the same for an expert

opinion to ascertain the handwriting in the cheque.

It was observed that, even if it is found

that the handwriting does not belong to the

petitioner/accused, he cannot escape from the

liability. The learned counsel for the petitioner

points out that the aforesaid finding is

unsustainable and on account of the decision taken by

the learned Magistrate, he was deprived of his right

to establish his innocence.

6. In Bir Singh v. Mukesh Kumar [2019(1)KHC 774]

in paragraph 37, it was observed as follows:

"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, S.20, S.87 and S.139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of S.138 would be attracted. In the light of the principles laid down by the

Hon'ble Supreme Court in the said judgment, even if it is proved that the cheque was not filled up by the accused, the offence under Section 138 of the Negotiable Instruments Act can be attracted if the signature on the same is admitted."

7. In the said judgment, it is clearly observed

that, the question as to who filled up the cheque is

not a material aspect. A person who signs the cheque

and makes it over to the payee, remains liable,

unless he adduces evidence to rebut the presumption

that the cheque had been issued for payment of a debt

or in discharge of a liability. In this case,

signature on the cheque is admitted. It is the case

of the petitioner herein that, the said cheque was

signed by him and handed over to the complainant as a

security. Therefore, no purpose would be served by

sending the cheque in this case for hand writing

expert, for examining the hand writings contained in

the cheque. Thus, in the light of the proposition of

law as laid down in the said judgment, the decision

taken by the learned Magistrate cannot be held as

incorrect and I do not find any legal infirmity so as

to warrant an interference therein.

In such circumstances, I do not find any merit in

this Crl.M.C. and accordingly it is dismissed.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

pkk

APPENDIX OF CRL.MC 266/2015

PETITIONER'S EXHIBITS

ANNEXURE A1- A TRUE COPY OF THE PETITION M.P.12961/2014

ANNXURE A2- A TRUE COPY OF THE COUNTER FILED AGAINST THE PETITION M.P.12961/14

ANNXURE A3- A TRUE COPY OF THE ORDER IN M.P.NO.12961/2014 IN C.C.190/2011 DATED 26.11.2014 OF HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM