P J FRANCIS Vs. A PRADEEP

JUDGEMENT

(1.) Does S.254(2) Cr.P.C. oblige the Magistrate to accept every request to send a cheque to the handwriting expert, in a prosecution under S.138 of the N.I. Act This question incidentally arises for consideration in this Revision Petition which is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under S.138 of the N.I. Act.

(2.) The cheque is for an amount of Rs. 13,000/-. The complainant alleged that it was issued by the accused to him for the discharge of a liability arising from sale/purchase of banana bunches. Notice of demand, though received and acknowledged, did not evoke any response. The complainant examined himself as PW.2 and the Bank Manager as PW.1. Exts.P1 to P7 were marked. In the course of cross examination, there was no specific suggestion that the signature in the cheque is not that of the accused. But at the stage of 313 examination, a contention was raised that the cheque was not signed by him. When the complainant was in the witness stand, the suggestion was that the transaction was not between him and the accused, but between the complainant and the younger brother of the accused. At the defence stage, petitioner appears to have made an application under S.254(2) Cr.P.C. to send the cheque to the expert. Notwithstanding the absence of reply to the notice of demand and notwithstanding the absence of a specific suggestion when PW.2 was in the witness stand that the signature in the cheque is not that of the accused, the learned Magistrate appears to have naively accepted the request of the petitioner to send the cheque to the expert. The expert, DW. 1 reported that he was not able to make any specific opinion about the authorship of the signature and the writings in the cheque. The expert was examined as DW.1. Exts.D1 to D3 were marked.

(3.) Courts below concurrently came to the conclusion that the complainant has succeeded in establishing all ingredients of the offence punishable under S.138 of the N.I. Act. Accordingly, they proceeded to pass the impugned judgments.