Kerala High Court
Rajeena vs State Of Kerala on 28 May, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
CRL.MC NO. 3677 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN ST NO.2058 OF 2019
OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II,
KOTHAMANGALAM
PETITIONER/ACCUSED :
RAJEENA, AGED 44 YEARS
W/O SHAHUL T.K, THOPPILPARAMBU HOUSE,
MANNAM P.O, NORTH PARAVOOR,
ERNAKULAM, PIN - 683520
BY ADVS.
VISHNU DAS
SRUTHI DAS
MARIA NEETHU T.J
ANAGHA A.S.
GINI GEORGE
MAJESH P.B.
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031.
2 M/S. KLM NIDHI LIMITED,
KLM TOWERS, COLLEGE ROAD, KOTHAMANGALAM.
REPRESENTED BY POWER OF ATTORNEY HOLDER ABDUL
LATHEEF S/O ABDUL SAIDU, AGED 49 YEARS,
KUNJATTU HOUSE, PALLARIMANGALAM P.O,
PALLARIMANGALAM ERNAKULAM, PIN - 686671
BY ADV PEEYUS A. KOTTAM
SRI. NOUSHAD K. A. (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 28.05.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.MC 3677/2024
2
BECHU KURIAN THOMAS, J
......................................................
Crl.M.C.No.3677 of 2024
...................................................
Dated this the 28th day of May, 2024
ORDER
Petitioner is the accused in S.T.No.2058/2019 on the files of the Judicial
First Class Magistrate Court-II, Kothamangalam and is facing indictment
for the offences punishable under Section 138 of the Negotiable
Instruments Act, 1881. During the course of trial, petitioner filed an
application as CMP No.944/2024 to send the cheque in question, for
examination to the Forensic Science Laboratory. The learned Magistrate,
by the impugned order, dismissed the said application, against which
this petition under Section 482 Cr.P.C. has been preferred.
2. I have heard Sri.Vishnu Das, the learned counsel for the petitioner, as
well as Sri.Peeyus A.Kottam, the learned counsel for the 2 nd respondent
and Sri.Noushad K.A., the learned Public Prosecutor.
3. The learned Magistrate while dismissing the application for sending the
disputed cheque for forensic examination observed that, though the
complaint was filed in December, 2018, the accused appeared only on
15.10.2022 and the complainant was examined on 26.06.2023. However,
the accused sought time for cross examination of the witness and
subsequently offered to settle the matter, due to which the case was
adjourned. Later, he backtracked from his offer. Since the settlement as
offered did not fructify, the trial court closed the evidence of the
complainant and posted the case for questioning the accused under
Section 313(1)(b) of Cr.P.C. on 19.10.2023. Thereafter as part of the
defence evidence DW1 and DW2 were examined and when the case was
posted for final hearing on 05.04.2024, the accused filed a petition under
Section 311 to reopen the evidence. After going through the cross
examination of PW1 and also after perusing the signature in Ext.P7
cheque as well as the other documents before the court, the learned
Magistrate came to the conclusion that the application is filed as a
delaying tactic, and therefore, dismissed the same.
4. On an appreciation of the above circumstances narrated by the learned
Magistrate in the impugned order, it is evident that the petitioner had
not raised any dispute on the signature appearing in the cheque until the
case was posted for hearing. Even during the cross examination of the
complainant, the defense had not disputed the signature on the cheque.
In the absence of any dispute about the cheque, no purpose would be
achieved by sending it for forensic examination. The attempt of the
petitioner all along, as has been observed by the trial court, is intended
to delay the matter; which inference cannot be found fault with. If the
cheque is, at this stage, sent for forensic examination, invariably there
will be a delay of several years, and therefore, it is incumbent upon the
learned Magistrate to consider whether the application filed is bona fide
or not.
5. Further, the accused had other modes of adducing evidence to convince
the court regarding the veracity of the signature on the cheque as noted
in the decision in Ajitsinh Chehuji Rathod v. State of Gujarat & Anr.
(2024) SCC Online SC 77. Such modes having not been adopted,
sending the cheque for forensic examination cannot be resorted to at this
belated stage.
6. Having regard to the entire circumstances, this Court cannot find fault
with the decision of the learned Magistrate in dismissing the application
for sending the cheque for expert examination. Therefore, I find no
merit in this petition and the same is dismissed.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/30/05/2024
PETITIONER ANNEXURES
ANNEXURE A1 THE TRUE COPY OF THE PETITION NUMBERED CMP
NO. 944/2024 DATED 05.04.2024.
ANNEXURE A2 THE TRUE COPY OF THE ORDER OF CMP NO.
944/2024 IN ST NO. 2058/2019 OF HON'BLE
JUDICIAL FIRST CLASS MAGISTRATE-II,
KOTHAMANGALAM DATED 12.04.2024.
TRUE COPY
