Kerala High Court
Renjan K. John, S/O.V.G John vs Rekha @ Lekha, D/O.Lalithamma on 23 May, 2024
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
OP(CRL.) NO. 403 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 17.02.2024 IN CC NO.47 OF 2019 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -IV, PUNALUR
PETITIONER:
RENJAN K. JOHN, S/O.V.G JOHN
AGED 61 YEARS
KUNDUMAN PUTHEN VEEDU, KADAVARAM, KARUKONE P.O, KOLLAM,
PIN - 691306
BY ADV R.KRISHNAKUMAR (CHERTHALA)
RESPONDENTS:
1 REKHA @ LEKHA, D/O.LALITHAMMA
VALLIPPACHAYIL KOCHU VEEDU, PUTHAYAM, KARUKONE MURI,
ALAYAMON VILLEGE, PUNALUR, KOLLAM, PIN - 691306
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
OTHER PRESENT:
G SUDHEER,PP
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CRL.) NO. 403 OF 2024
2
K.BABU, J.
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OP(Crl).No.403 of 2024
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Dated this the 23rd day of May, 2024
JUDGMENT
The prayers in this OP(Crl.) are as follows:-
"(i) To set aside Ext.P3 order, i.e order dated 17.02.2024 in
CMP No.47/2023 in C.C.No.47/2019 on the file of the Hon'ble
Judicial First Class Magistrate Court-IV, Punalur by passing
an order or direction.
(ii) To allow Ext.P1 petition, CMP No.47/2023 in
C.C.No.47/2019 on the file of the Hon'ble Judicial First Class
Magistrate Court-IV, Punalur, by issuing an order or
direction.
(iii) Issue such other orders or directions as this Hon'ble
Court deems fit and proper in the facts and circumstances of
the case."
2. Petitioner is the accused in C.C.47 of 2019 on the file of
the Judicial First Class Magistrate Court-IV, Punalur. He is alleged
to have committed offence punishable under Section 138 of the
Negotiable Instruments Act. The allegation in the complaint is
that the petitioner issued Exhibit P1 cheque in discharge of a
legally enforceable debt to respondent No.1, which was
dishonoured due to insufficiency of funds.
3. The Trial Court is now proceeding with the trial. The
petitioner filed CMP No.293 of 2023 seeking to send Exhibit P1
OP(CRL.) NO. 403 OF 2024
cheque for expert examination. As per the application, the
petitioner wanted to compare the signature in Exhibit P1 with his
admitted signatures and writings. He also wanted to assess the
age of the writings in Exhibit P1 cheque.
4. The learned Magistrate dismissed the application,
holding that there are no scientific and technical facilities
available in India for determining the age of the handwriting or
the signature in the cheque.
5. This order is under challenge in this original petition.
The learned counsel for the petitioner confined the reliefs to give
a direction to the learned Magistrate to compare the signature
and writings in Exhibit P1 with his admitted writings and
signatures.
6. Having regard to the nature of the reliefs sought for,
notice to respondent No.1 is dispensed with.
7. The specific case of the petitioner is that he has not
executed Exhibit P1 cheque. The learned counsel for the
petitioner submitted that the admitted writings and signatures of
the petitioner are available in the drawee bank and that he is
prepared to cause the production of the same for comparison.
OP(CRL.) NO. 403 OF 2024
Section 73 of the Evidence Act expressly enables the Court to
compare the disputed writings with admitted or proved writings
to ascertain whether a writing is that of a person by whom it
purports to have been written. On the power of the Court under
Section 73 of the Evidence Act, the Apex Court in Murari Lal v.
State of M.P. [(1980) 1 SCC 704 ] observes thus:
"12. The argument that the court should not venture to
compare writings itself, as it would thereby assume to itself the
role of an expert is entirely without force. Section 73 of the
Evidence Act expressly enables the court to compare disputed
writings with admitted or proved writings to ascertain whether
a writing is that of the person by whom it purports to have
been written. If it is hazardous to do so, as sometimes said, we
are afraid it is one of the hazards to which judge and litigant
must expose themselves whenever it becomes necessary.
There may be cases where both sides call experts and two
voices of science are heard. There may be cases where neither
side calls an expert, being ill-able to afford him. In all such
cases, it becomes the plain duty of the court to compare the
writings and come to its own conclusion. The duty cannot be
avoided by recourse to the statement that the court is no
expert. Where there are expert opinions, they will aid the court.
Where there is none, the court will have to seek guidance from
some authoritative textbook and the court's own experience
and knowledge. But discharge it must, its plain duty, with or
without expert, with or without other evidence."
8. In Sivadas v. State of Kerala [2023(3) KLT 814] this
Court held thus:
OP(CRL.) NO. 403 OF 2024
"In a case where the Court is constrained to undertake
the responsibility of comparing the disputed writing or
signature with the admitted handwriting or signature, it shall
make a careful study, if necessary, with the assistance of
counsel, to ascertain the characteristics, similarities and
dissimilarities. The judgment shall contain the reasons for any
conclusion based on a comparison of the
handwriting/signature if the Court proceeds to record a
finding thereon. Conclusions arrived based on a casual or
routine glance, or perusal shall not be relied on to enter into
a finding leading to the conviction of an accused."
9. Having regard to the nature of the contentions raised
by the petitioner during the trial, I am of the view that, if a
request is made from the part of the petitioner to compare the
admitted writings and signatures with the disputed writings and
signature in Ext.P1, the trial court shall undertake the
responsibility by invoking the provisions of Section 73 of the
Indian Evidence Act on the touchstone of the precedents
discussed above.
The original petition is disposed of as above
Sd/-
K.BABU,
JUDGE
saap
OP(CRL.) NO. 403 OF 2024
APPENDIX OF OP(CRL.) 403/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PETITION, CMP NO.47/2023
IN C.C NO.47/2019 ON THE FILE OF THE
HON'BLE JUDICIAL FIRST CLASS MAGISTRATE
COURT-IV, PUNALUR DATED 11-10-2023
Exhibit P2 A TRUE COPY OF THE OBJECTION FILED BY THE
1ST RESPONDENT IN EXT.P1 DATED 23-01-2024
Exhibit P3 A TRUE COPY OF THE ORDER DATED 17-02-2024
IN CMP NO.47/2023 IN C.C NO.47/2019 ON THE
FILE OF THE HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT-IV, PUNALUR
//True copy//PA to Judge
