Kerala High Court
Gireesh Kumar.A vs State Of Kerala on 21 November, 2024
Author: K.Babu
Bench: K. Babu
O.P.(Crl) No.789 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA,
1946
OP(CRL.) NO. 789 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN ST NO.52 OF
2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IX,
THIRUVANANTHAPURAM
PETITIONER/S:
GIREESH KUMAR.A.
AGED 59 YEARS
S/O (LATE) APPUKUTTAN PILLAI, LEKSHMI NIVAS
(FIRST FLOOR), NEAR VILLAGE OFFICE,
MALAYINKEEZHU.P.O., THIRUVANANTHAPURAM,
PIN - 695571
BY ADVS.
AYYAPPAN SANKAR
S.HRIDYA
K.RADHAKRISHNAN (KEEZHMANA)
JOSE P. THOMAS
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
O.P.(Crl) No.789 of 2024
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2 M.G. SANTHOSH KUMAR
S/O (LATE) M. GOPINATHA PILLAI, 'ANUSHKA', MRA
B7, MANNADI LANE, AMBALAMMUKKU, PEROORKADA.P.O.,
THIRUVANANTHAPURAM, PIN - 695005
BY ADVS.
R1 BY SRI G SUDHEER, PUBLIC PROSECUTOR
V.R.GOPU
J.NARAYANA PILLAI(K/772/1992)
URMILA.M.G(K/1244/2020)
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
21.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(Crl) No.789 of 2024
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K.BABU, J.
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O.P.(Crl) No.789 of 2024
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Dated this the 21st day of November, 2024
JUDGMENT
The petitioner, the accused in ST No.52 of 2023 on
the file of the Judicial First Class Magistrate Court-IX,
Thiruvananthapuram, challenges Exts.P6, P7 and P13
orders. The petitioner faces charge for the offence under
Section 138 of the Negotiable Instruments Act.
2. The trial Court is proceeding with the trial.
After examination of the petitioner/accused under Section
313 Cr.PC, the petitioner filed CMP Nos.51/2023, 56/2024
and 57/2024. In CMP No.51 of 2023, the petitioner
prayed for sending Ext.P2 cheque for expert examination
by the Forensic Science Laboratory. In CMP No.56/2024,
the petitioner prayed for recalling PWs 1 and 2. In CMP
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No.57/2024, the petitioner requested for sending
summons to three defence witnesses. The learned
Magistrate dismissed the above three applications as per
the impugned orders.
3. I have heard the learned counsel appearing for
the petitioner, the learned counsel appearing for the
respondent and the learned Public Prosecutor.
4. The learned counsel for the petitioner
submitted that the petitioner denied the signature and
the writings in Ext.P2 cheque. Therefore, to facilitate him
to rebut the mandatory presumption that may be drawn
in favour of the complainant, examination of the cheque
by the Forensic Science Laboratory is required. The
learned counsel further submitted that PWs 1 and 2 (the
complainant and an independent witness) are to be cross-
examined to establish the defence case. The learned
counsel submitted that denial of permission to examine
three defence witnesses is also unjustified.
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5. The learned counsel for the respondent No.2
submitted that the petitioner has not placed sufficient
grounds to seek expert examination of the disputed
cheque. The learned counsel submitted that the only
attempt of the petitioner is to delay the proceedings. The
learned counsel also submitted that in the application
filed under Section 311 Cr.PC seeking further
examination of PWs 1 and 2, the petitioner had not stated
any specific reason as to why they should be examined.
The learned counsel would further submit that along
with the application seeking to send summons to three
defence witnesses, the petitioner had not produced any
witness schedule and that was the reason for rejection of
that application. The specific case of the respondent
No.2/complainant is that the petitioner borrowed a sum of
Rs.10,00,000/- and executed Ext.P2 cheque in his favour.
A statutory notice was caused to be issued to the accused,
which he received. But he had not caused to issue any
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reply to the same. Therefore, I find no reason to send the
cheque for expert examination.
6. In Kalyani Bhaskar v. M.S.Sampooranam
[2007(2) SCC 258], the Supreme Court held that
adducing evidence in support of the defence is a valuable
right and denial of that right would mean denial of a fair
trial. In that case, the Apex Court allowed the application
filed by the accused for sending the cheque for opinion of
the handwriting expert holding that the Magistrate
should have granted such a request unless he thinks that
the object of the accused is vexation or delaying the
criminal proceedings. Kalyani Bhaskar is an authority
for the proposition that if the intention of the accused is
to protract the proceedings, the request for sending the
cheque for expert opinion can be rejected. In Nagappa v.
Muralidhar [AIR 2008 SC 2010], the Apex Court
considered the prayer made by the accused for sending
the cheque for expert opinion. In Nagappa, the Supreme
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Court held that the Court being the master of the
proceedings must determine as to whether the
application filed by the accused is bonafide or not or
whether thereby he intends to bring on record a relevant
material. The Apex Court further held that there cannot
be any doubt whatsoever that the accused should not be
allowed to unnecessarily protract the trial. In Francis v.
Pradeep [2004 (2) KLT 1080], this Court held thus:-
"The easiest way to protract proceedings under Section
138 of the N.I. Act and thus stultify the spirit and object
of the provisions of Section 138 of the N.I. Act is to
request that the cheque be sent to the expert. The soul of
the provision will be lost if there is no expeditious
enforcement. On account of pressure of work at the
Forensic Science Laboratory, it is common knowledge
that the expert will not be able to give the report within a
period of three to four years. Convenient protraction can
be achieved by requesting that the cheque be forwarded
to the expert for examination. It is for the Trial Court to
alertly consider the acceptability of such request and
ensure that the cheque is forwarded to the expert only if
satisfactory reasons are available". (emphasis supplied).
7. The trial Court, after considering the rival
contentions, came to the conclusion that the request for
sending Ext.P2 cheque for expert examination was not
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bonafide. Therefore, I find no reason to interfere with
Ext.P6 order. The said order stands confirmed.
8. However, if the petitioner/accused makes a
request for comparison of his admitted signature and
writings with the disputed writings, the trial Court shall
invoke Section 73 of the Evidence Act, considering the
principles declared by the Supreme Court in Murali Lal
v. State of MP [(1980) 1 SCC 704] and the decision of
this Court in Sivadas v. State of Kerala [2023 LiveLaw
(Ker) 57].
9. As per Ext.P7 order, the learned trial Judge
rejected the request of the petitioner to recall PWs 1 and
2. In the application seeking recalling of those witnesses,
the petitioner had not specifically stated the grounds on
which they are to be recalled. The petitioner only made a
casual statement that to establish the defence evidence,
those witnesses are to be recalled. The learned trial
Magistrate, therefore, rejected the application as the
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same was not bonafide. That order also requires no
interference. Therefore, Ext.P7 order stands confirmed.
10. The petitioner also filed CMP.No.57/2024
seeking to issue summons to three witnesses for leading
defence evidence. The learned trial Magistrate dismissed
the application mainly on the ground that the petitioner
had not submitted any witness schedule along with the
application. The learned Magistrate also recorded the
finding that the petitioner had not cited any reasons in
the application seeking to send summons to those
witnesses. The learned counsel for the petitioner
submitted that he had submitted the witness schedule, a
copy of which has been produced and marked as Ext.P10.
11. Having regard to the rival submissions, I am of
the view that the petitioner is to be given an opportunity
to examine the witnesses cited in Ext.P10 schedule.
Therefore, the order dated 26.10.2024 in CMP
No.57/2024 (Ext.P13) stands set aside. CMP No.57/2024
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is restored to file. The petitioner is permitted to examine
the witnesses mentioned in Ext.P10. The learned
Magistrate shall issue summons to those witnesses for
their appearance on 26.12.2024, the next posting date.
If the petitioner fails to take steps to issue summons to
those witnesses on or before 06.12.2024, so as to
facilitate the Court to issue summons, CMP.57/2024
would stand dismissed.
The Original Petition is disposed of accordingly.
Sd/-
K.BABU,
JUDGE
kkj
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APPENDIX OF OP(CRL.) 789/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMPLAINT DATED
5.5.2021 IN S.T. NO.52/2023 ON THE
FILE OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM (WITHOUT DOCUMENTS)
Exhibit P2 TRUE COPY OF THE CHEQUE NO.014351
DATED 29.12.2020 FOR AN AMOUNT OF
RS.10,00,000/- DRAWN ON KERALA GRAMIN
BANK PRODUCED ALONG WITH EXHIBIT-P1
COMPLAINT AND COPY SERVED TO
PETITIONER
Exhibit P3 TRUE COPY OF THE PETITION DATED
16.1.2024 IN C.M.P. NO.51/2023 IN S.T.
NO.52/2023 ON THE FILE OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM
Exhibit P4 TRUE COPY OF THE OBJECTION DATED
29.1.2024 IN C.M.P. NO.51/2023 IN S.T.
NO.52/2023 ON THE FILE OF THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM FILED BY 2ND
RESPONDENT
Exhibit P5 TRUE COPY OF THE PETITION DATED
6.3.2024 TO RECALL PW1 & PW2 FOR
FURTHER CROSS-EXAMINATION, FILED AS
C.M.P. NO.56/2024 IN S.T. NO.52/2023
ON THE FILE OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM
Exhibit P6 TRUE COPY OF THE ORDER DATED 29.2.2024
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IN C.M.P. NO.51/2023 IN S.T.
NO.52/2023 OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM
Exhibit P7 TRUE COPY OF THE ORDER DATED 22.3.2024
IN C.M.P. NO.56/2024 IN S.T.
NO.52/2023 OF THE JUDICIAL FIRST CLASS
MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM
Exhibit P8 TRUE COPY OF THE WITNESS SCHEDULE
DATED 22.4.2024 FILED BY THE
PETITIONER IN S.T. NO.52/2023 ON THE
FILE OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM
Exhibit P9 TRUE COPY OF THE ORAL TESTIMONY OF
PETITIONER'S DAUGHTER, EXAMINED AS DW1
ON 25.4.2024 IN S.T. NO.52/2023 ON THE
FILE OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM
Exhibit P10 TRUE COPY OF THE PETITION DATED
29.4.2024 FILED AS C.M.P. NO.57/2024
IN S.T. NO.52/2023 ON THE FILE OF
JUDICIAL FIRST CLASS MAGISTRATE COURT-
IX, THIRUVANANTHAPURAM
Exhibit P11 TRUE COPY OF THE MEMORANDUM OF
ARGUMENTS DATED 20.6.2024 FILED BY 2ND
RESPONDENT IN S.T. NO.52/2023 ON THE
FILE OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM
Exhibit P12 TRUE COPY OF THE OBJECTION DATED
8.7.2024, FILED BY 2ND RESPONDENT IN
C.M.P. NO.57/2024 IN S.T. NO.52/2023
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ON THE FILE OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM
Exhibit P13 TRUE COPY OF THE ORDER DATED
26.10.2024 IN C.M.P. NO.57/2024 IN
S.T. NO.52/2023 PASSED BY THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM
Exhibit P14 TRUE COPY OF THE PETITION DATED
5.11.2024 FILED BY PETITIONER, SEEKING
TIME TO PURSUE REMEDY AGAINST THE
ORDER DISMISSING EXHIBIT-P10PETITION,
IN S.T. NO.52/2023 ON THE FILE OF
JUDICIAL FIRST CLASS MAGISTRATE COURT-
IX, THIRUVANANTHAPURAM
Exhibit P15 TRUE COPY OF THE DEPOSITION OF 2ND
RESPONDENT/COMPLAINANT AS PW1 IN S.T.
NO. 52/2023 JUDICIAL FIRST CLASS
MAGISTRATE COURT-IX,
THIRUVANANTHAPURAM DATED NIL
Exhibit P16 TRUE COPY OF THE 313 STATEMENT OF
PETITIONER IN S.T. NO. 52/2023
JUDICIAL FIRST CLASS MAGISTRATE COURT-
IX, THIRUVANANTHAPURAM DATED 12.3.2024
