Kerala High Court
Anu Kurian vs Babu Varghese on 30 October, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
2024:KER:80874
CRL.MC NO. 9007 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
CRL.MC NO. 9007 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.56 OF 2022 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -II, MUVATTUPZHA
PETITIONER/ACCUSED :
ANU KURIAN, AGED 36 YEARS
NETILAMKUZHIYIL HOUSE, PAMPAKUDA P.O.,
ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT, PIN - 686 667.
BY ADVS.
IEANS.C.CHAMAKKALA
AADHAL THANKACHAN
BINU B.SAMUEL
RESPONDENT/COMPLAINANT :
1 BABU VARGHESE, AGED 54 YEARS
S/O VARGHESE, VADAKKEKARAPUTHENPURAYIL HOUSE,
PAMPAKUDA P.O, ONAKKOOR VILLAGE,
MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT, PIN - 686 667.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031
SMT. SREEJA V (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
30.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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CRL.MC NO. 9007 OF 2024
2
BECHU KURIAN THOMAS, J
......................................................
Crl.M.C.No.9007 of 2024
...................................................
Dated this the 30th day of October, 2024
ORDER
Petitioner is the sole accused in C.C.No.56/2022 on the files of the
Judicial First Class Magistrate Court-II, Muvattupuzha. He challenges
the order dated 19.04.2024 in CMP No.777/2023 in the aforesaid case
whereby his application to send the cheque in question to a
handwriting expert was dismissed by the learned Magistrate.
2. The complaint was filed by the respondent alleging offence under
Section 138 of the Negotiable Instruments Act, 1881. The complainant
alleged that the petitioner had issued a cheque for Rs.6,00,000/- on
24.11.2017 in repayment of the amount borrowed by him and when
the said cheque was presented for encashment, it was dishonoured
with the memo 'funds insufficient'. Subsequently after complying with
the statutory requirements, a complaint was filed in the year 2018,
which is now numbered as C.C.No.56/2022. After the evidence of the
complainant was completed, a petition was filed on 18.11.2023
requesting to send the cheque for the opinion of the handwriting
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expert as petitioner contended that the writings on the cheque are not
his and alleges the same to be that of the complainant. The learned
Magistrate, by the impugned order, dismissed the said application after
finding that the opinion of the handwriting expert cannot advance the
case of the accused.
3. I have heard Sr.Ieans C. Chamakkala, the learned counsel for the
petitioner as well as Smt.Sreeja V., the learned Public Prosecutor.
4. At this stage of the consideration, it needs to be mentioned that the
accused had not issued any reply notice to the statutory notice issued
by the complainant. There is also no dispute regarding the signature
on the cheque. However, petitioner disputes the writings on the
cheque. According to him, since the complainant has accepted that the
endorsement on the reverse side of the cheque belongs to him unless
opinion is elicited regarding the writings on the cheque which
according to him tallies with the entry on the reverse side, he would
not be able to strengthen his defense.
5. In the decision in Bir Singh v. Mukesh Kumar [AIR 2019 SC 2446],
the Supreme Court has observed that if a blank signed cheque is
voluntarily handed over towards payment, the payee is entitled to
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CRL.MC NO. 9007 OF 2024
fill up the blanks as provided under Section 20 of the NI Act. It
was also observed that it is immaterial that the cheque may have
been filled in by any person other than the drawer, if the cheque
was duly signed by the drawer.
6. Similarly in the decision in Oriental Bank of Commerce v. Prabodh
Kumar Tewari 2022 Livelaw (SC) 714 the Supreme Court had
observed that the presumptions under the NI Act, cannot be
rebutted by writings on the cheque being that of another person
especially when the signature is admitted. It was also held that
even if the cheque was not filled up by the drawer but by another
person, the same is not sufficient to rebut the presumption available
under law.
7. Considering the circumstance that, the complaint was filed in the
year 2018 and the petition for opinion of handwriting expert was
filed only in 2023 that too at the fag end of the trial and further
that the impugned order is of March 2024, I am of the view that no
purpose would be achieved by sending the cheque for the opinion of
the Forensic Expert except for delaying and protracting the trial.
8. In fact, in the impugned order, the learned Magistrate has
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considered all the legal and factual aspects, and there is no
perversity or irregularity warranting an interference.
Accordingly, this Crl.M.C. is dismissed.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/30/10/2024
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CRL.MC NO. 9007 OF 2024
PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE COMPLAINT IN C.C NO.
56/2022 ON THE FILES OF THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-II, MUVATTUPUZHA
ANNEXURE A2 THE CERTIFIED COPY OF THE CRL.MP. NO.
777/2023 IN C.C NO. 56/2022 FILED BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE COURT-II,
MUVATTUPUZHA
ANNEXURE A3 COPY OF THE OBJECTION FILED BY THE 1ST
RESPONDENT IN CRL.MP. NO. 777/2023 IN C.C
NO. 56/2022 FILED BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-II, MUVATTUPUZHA
ANNEXURE A4 THE CERTIFIED COPY OF THE ORDER IN CMP.NO.
ANNEXURE A5 THE CERTIFIED COPY OF THE PROOF AFFIDAVIT IN
LIEU OF CHIEF EXAMINATION AND THE CROSS
EXAMINATION OF THE 1ST RESPONDENT
ANNEXURE A6 THE CERTIFIED COPY OF THE CHEQUE DATED
24-11-2017, WHICH IS MARKED AS EXHIBIT P1
DURING THE TRIAL
