K. Abdul Nazar vs State of Kerala

K. Ramakrishnan, J.—This criminal miscellaneous case was filed by the petitioner, who is the accused in S.T. No. 1008/2009 pending before the Judicial First Class Magistrate Court-III, Kannur, challenging the order in C.M.P. No. 60/2013 under Section 482 of the Code of Criminal Procedure (hereinafter called ''the Code'').

It is alleged in the petition that, the petitioner is the accused in S.T. No. 1008/2009 pending before the Judicial First Class Magistrate Court-III, Kannur. The case was taken on file, on the basis of a private complaint filed by the 2nd respondent, alleging offences under Section 138 of the Negotiable Instruments Act. The case of the complainant was that, there was some money transaction between the petitioner and the defacto-complainant and in discharge of the liability, the petitioner issued Ext. P1 and P2 cheques, which when presented were dishonoured for the reasons ''funds insufficient'' and in spite of the notice issued, he had not paid the amount. So he had committed the offence punishable under 138 of the Negotiable Instruments Act. After the appearance of the parties, originally the power of attorney of the complainant was examined, but there was no cross examination.

Thereafter, the complainant himself appeared and adduced evidence, without noticing the fact that, earlier chief affidavit was filed by the power of attorney holder, the cross examination of the complainant was allowed to be completed. When this was realized, the learned magistrate sent a report to the Sessions Court, pointing out the irregularities and the learned Sessions Judge suo-moto taken a revision and allowed the revision and directed the magistrate to examine the complainant afresh and proceed with the case. It was on that basis, the complainant was examined again and the accused was questioned under Section 313 of the Code of Criminal Procedure and the evidence was closed. Thereafter, the petitioner filed Crl. M.P. Nos. 59/2013 and 60/2013 respectively for reopening the evidence and sent the disputed cheques for expert opinion and the learned magistrate had after hearing both sides dismissed the application by Annexure-C order, which is being challenged by the petitioner by filing this petition.

Though notice was served on the 2nd respondent, he remained absent.

Heard, the learned counsel for the petitioner and the learned Public Prosecutor appearing for the first respondent.

The learned counsel for the petitioner submitted that, he had not admitted the signature in the cheque and he got opportunity to file the application only on a later stage and when he filed the application, without assigning any reason, the learned magistrate dismissed the application by the impugned order, which is unsustainable in law. Further his case was that, he had not signed the cheques and the blank cheques given to one Anilkumar from Dubai with an understanding that, whenever he requires, he will put the signature in the cheque were later misused and the present complaint was filed is the contention of the petitioner before the court below. PW1 had deposed that, the cheques were signed in his presence by the accused. In order to disprove the fact that, the petitioner has no other remedy, except to send the cheque for expert opinion, for which purpose he filed the application, which was dismissed by the court below, thereby an opportunity to prove his innocence have been denied.

The application was opposed by the learned Public Prosecutor on the ground that, the petition was filed after the evidence was closed and posted for hearing and the attempt is only to prolong the matter.

It is an admitted fact that, on the basis of the private complaint filed by the 2nd respondent/complainant, the case was taken on file as S.T.C. No. 1008/2009 by the Judicial First Class Magistrate Court-III, Kannur, alleging offences under Section 138 of the Negotiable Instruments Act and that was pending before the Judicial First Class Magistrate Court-III, Kannur. It was the case of the complainant that, there was some money transaction between the petitioner and the 2nd respondent and in discharge of that liability, the accused had issued two impugned cheques, but the case of the accused was of total denial. It is also seen from the report of the lower court that, earlier though the complaint was filed by the complainant directly, he was later permitted to be represented by power of attorney and the power of attorney holder filed the proof affidavit on behalf of the complainant, later when the complainant came, he was examined and without getting a fresh proof affidavit, he was permitted to be cross examined by the accused. This irregularity was later found by the court below and the learned magistrate sent a report to the Sessions Judge, regarding the irregularity committed and the learned Sessions Judge has taken a suo-moto revision and allowed the revision and directed the magistrate to examine the complainant afresh and it is on that basis that, later the complainant himself had filed chief affidavit and he was examined and documents were marked. It is also seen from the report that, the evidence was closed and it was posted for hearing and it was at that time, that the petitioner filed Crl. M.P. Nos. 59/2013 and 60/2013 respectively for reopening the evidence and also for sending the disputed cheques for expert opinion and the learned magistrate has dismissed that petition by Annexure-III order, which reads as follows:

"The petition filed for sending the cheques for expert opinion. Counter filed. Seriously object. I have perused, evidence started already. Petitioner is highly belated. Hence dismissed".

The case of the complainant was that, the cheques were executed by the accused in his presence. But the case of the accused was that, blank cheques were given to one Anilkumar from Dubai, on the understanding that, if it is required later, he will sign the same, if asked for by the said Anilkumar and those two cheques were forged and the present complaint was filed. The nature of cross examination also goes on that line. In the counter, the respondent only stated that, the cheque was not returned by the bank for the reasons ''signature differs''. So it can only be presumed that, the signature was proved. It may be mentioned here that, even in a case where the signature in the cheque was admitted, but the execution of the cheque was denied, then the accused will be getting the opportunity to disprove the same by sending the cheque for expert opinion, if the complainant had a case that, the writings in the cheque were that of the accused. In this case, there is no reasons stated by the learned magistrate for dismissing the application, but it was dismissed by a cryptic order. When the accused filed an application to prove his innocence, stating the reason for sending the report, there is a duty cast on the magistrate to pass a speaking order on that application. But that was not done in this case. Further I have perused the certified copy of the depositions of PW1 produced for perusal by the counsel for the petitioner at the time of hearing, in which PW1 had admitted that, the cheques were brought filled by the accused and signed in his presence. So he had no case that, the signature was not put in front of him, but the accused is denying this aspect. According to him, the signature in the cheque was not that of the accused. Merely because, the bank had not stated the reason as the signature differs for return of the cheque, that alone is not sufficient to come to the conclusion that, the signature in the cheque was that of the accused. When there was no amount in the account, they could have returned the cheque on that ground alone, as they need not go into the other aspect.

So under such circumstances, this court feels that, an opportunity has to be given to the petitioner/accused to prove his innocence, but it cannot be said that, the application filed is belated as well. The proceedings were delayed for the reasons stated in the report and the petitioner was not responsible for the same. So under the circumstances, this court feels that, the order passed by the court below, dismissing the application has to be set aside and the same has to be allowed.

So the petition is allowed. Order of the lower court dismissing the application C.M.P. No. 60/2013 is set aside and it is allowed and the magistrate is directed to send the disputed cheque to the Regional Forensic Science Laboratory, Kannur, for getting the expert opinion, regarding the signature in the disputed cheque. The petitioner is directed to take steps to produce the standard signature of the petitioner during the relevant time, within one week from the date on which the case will be posted for appearance of the party before that court and he will have to take steps to the required amount for that purpose also, without any delay within the time specified by the court below. If these things are complied with the petitioner, then the learned magistrate is directed to send the disputed cheques with the standard signatures produced by the petitioner during the relevant period and also after collecting the standard signature from court to the Regional Forensic Science Laboratory, Kannur, fixing the time for sending the opinion and after getting the opinion, court below is directed to dispose of the case, within two months from the date of receipt of the opinion of the expert. The parties are directed to appear before the court below on 03.09.2014. Office is directed to communicate this order to the court below, immediately.