Jain Palai vs The State Of Kerala
2023 Latest Caselaw 9621 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 FRIDAY, THE 8TH DAY OF SEPTEMBER 2023 / 17TH BHADRA, 1945
                    CRL.MC NO. 7193 OF 2023
     AGAINST THE ORDER/JUDGMENT ST 528/2019 OF JUDICIAL
         MAGISTRATE OF FIRST CLASS -II, SULTHANBATHERY
PETITIONER/S:

           JAIN PALAI
           AGED 53 YEARS
           S/O. JOSEPH, ELAVUNGAL, HOUSE, CHUNDAKOLLY,
           PULPALLY P.O, ,SULTHAN BATHERY, WAYANAD DT., PIN
           - 673579
           BY ADV A.V.JAMES


RESPONDENT/S:

     1     THE STATE OF KERALA
           REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.,
           PIN - 682031
     2     K.T. JOSEPH
           AGED 59 YEARS
           S/O THOMAS, KARUMANKUNNEL HOUSE, MULLANKOLLY
           POST, PULPALLY VILLAGE, SULTHAN BATHERY TALUK
           WAYANAD DT, PIN - 673579
OTHER PRESENT:

           VIPIN NARAYAN PP


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON   08.09.2023,   THE   COURT   ON   THE   SAME   DAY   PASSED   THE
FOLLOWING:
                                                        -2-
Crl.M.C No. 7193 of 2023



                               P.V.KUNHIKRISHNAN, J.
                              ======================================================

                                Crl.M.C No. 7193 of 2023
                           =============================================================

                   Dated this the 8th day of September, 2023

                                                 ORDER

The above Crl.M.C. is filed challenging Annexure A6 order

passed by the Judicial First Class Magistrate -II, Sulthan Bathery in

CMP No.2077 of 2023 in SC No.528 of 2019. Annexure A6 is an

order passed by the learned Magistrate in a petition filed by the 2 nd

respondent under Section 254(1) Cr.P.C read with Section 45 and 73

of the Evidence Act. Petitioner is the complainant in ST No.528 of

2019 on the file of the Judicial First Class Magistrate-II Sulthan

Bathery, which is filed against the petitioner alleging offence

punishable under Section 138 of the Negotiable Instruments Act by

the 2nd respondent. The petitioner was examined as witness before the

lower court and during cross examination, it is stated by him that the

accused had written and signed Ext.P1 cheque. But the accused

submitted that handwriting I n Ext.P1 is not of the accused and

he did not draw a cheque to the 2 nd respondent a s stated by the

2nd respondent. Therefore, the 2nd respondent prayed to sent

Ext.P1 cheque for expert opinion to ascertain whether the signature

Crl.M.C No. 7193 of 2023

seen in Ext.P1 belongs to the accused. The learned Magistrate

allowed the same. Aggrieved by the same, this Crl.M.C is filed.

2. Heard counsel for the petitioner and the Public Prosecutor.

3. This court perused Annexure A6 order. The trial court

only allowed the petition filed by the 2nd respondent for sending the

handwriting for expert opinion. The admissibility of the same is to be

decided at the time of final hearing. All other contentions raised by

the petitioner in this Crl.M.C are left open. The petitioner can

challenge the expert opinion once the same is received, in accordance

with law. This court is of the opinion that Annexure 6 order passed by

the court below need not be interfered by invoking the powers under

Section 482 of Cr.P.C. The petitioner is given liberty to raise all his

contentions including the admissibility of the expert opinion, at the

time of final hearing.

With the above liberty, this Crl.M.C is dismissed.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

Crl.M.C No. 7193 of 2023

APPENDIX OF CRL.MC 7193/2023

PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE COMPLAINT S T NO 528/2019 DATED 18.07.2019 FILED BY THE 2ND RESPONDENT BEFORE THE JFCM-LL, SULTHAN BATHERY Annexure A2 CERTIFIED COPY OF THE DEPOSITION OF THE COMPLAINANT DATED 20.05.23.

Annexure A3 CERTIFIED COPY OF THE EXAMINATION OF THE 2ND RESPONDENT U/S 313 OF CR.P.C.

Annexure A4 CERTIFIED COPY OF THE CMP NO.2077/23 FILED BY THE 2ND RESPONDENT DATED 08.06.2023.

Annexure A5 CERTIFIED COPY OF THE COUNTER FILED BY THE PETITIONER IN CMP NO.2077/23 DATED 07.07.23 Annexure A6 CERTIFIED COPY OF THE ORDER IN CMP. NO.

2077/2023 DATED 03.08.2023 OF THE JFCM- II, SULTHAN BATHERY