P K UTHUPPU Vs. MATHEW KUNJUMON

JUDGEMENT

(1.) THE revision petitioner is the petitioner in M.P.No.1115/2010 in C.C.No.3643/2007 on the file of the Judicial First Class Magistrate-I, Aluva. THE above C.C. was filed by the first respondent herein against the revision petitioner alleging offence punishable under Section 138 of the Negotiable Instruments Act. THE above mentioned petition was filed by the revision petitioner/accused for sending the disputed cheque for examination of the handwriting expert and to obtain a report. That petition was opposed by the complainant and filed objection. THE learned Magistrate dismissed the petition by the impugned order dated 1/11/2010 which is challenged in this revision.

(2.) HEARD the learned counsel for the revision petitioner and the learned counsel for the first respondent. HEARD the learned Public Prosecutor also.

(3.) IT is the primary principle that opportunity should be given to the parties in all cases to prove their respective contentions and no such opportunity should be denied to the parties in the case for the reason that it was belated. In the present case, steps were already taken by the accused herein and filed the petition to get the report of the expert to prove his contention regarding the denial of the signature in the disputed cheque. Admittedly, reply notice has been issued by the accused to the statutory notice sent by the complainant. That document also can be produced either by the complainant or by the accused. Only on production of that reply notice, it can be verified whether the denial of signature was a new inventory made by the accused to protract the matter. The non-production of the reply notice by the complainant can also be taken as a circumstance in favour of the accused. The defence can raise all contentions to challenge the prosecution against them. Sufficient opportunity should also be given to prove the defence which cannot be denied, though belated if justice is denied of that score. In these circumstances, I find that the interest of justice warrants an opportunity to be granted to the revision petitioner to proceed with the petition.