SOORAJ.A Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is an application filed by the petitioner who is accused in C.C.No.426/11 on the file of Judicial First Class Magistrate Court, No -II, Aluva to set aside the order in Crl.M.P.No.84/14 under Section 482 of Code of Criminal Procedure.

(2.) IT is alleged in the petition that petitioner was the accused in C.C.No.426/11 on the file of Judicial First Class Magistrate Court, No -II, Aluva which was filed by the second respondent herein alleging that the petitioner has committed the offence punishable under Section 138 of the Negotiable Instruments Act. The case of the complainant was that the petitioner owed some amount to him and for that purpose, he had executed a promissory note and in discharge of that liability, he had issued the disputed cheque as well and the cheque was presented, but dishonoured for the reason 'no such account' and later, it was corrected as 'account closed' and in spite of notice issued, the accused had not paid the amount. So, the petitioner has committed the offence punishable under Section 138 of the Negotiable Instruments Act. The complainant was examined as PW1 and disputed cheque was marked as Ext.P2 and the promissory note was marked as Ext.P1. When the complainant was in the box, he had admitted that the signature in the promissory note as well as the cheque were that of the petitioner and they were singed in his presence. The case of the petitioner was that he had no such transaction and the cheque was fraudulently taken and his signature was forged and misusing the cheque and on the basis of a forged promissory note, the present complaint has been filed. He had stated so in his 313 examination as well. Since there was dispute regarding the execution of the cheque, in order to prove that the signature in the cheque was not that of the accused, the petitioner filed Crl.M.P.No.84/14 for sending the disputed cheque and the specimen signature to expert opinion and that was dismissed by the learned magistrate by Annexure A4 order which is being challenged by the petitioner by filing this petition.

(3.) THE Counsel for the petitioner submitted that since he had disputed the execution of the cheque itself and there is an admission on the part of the complainant that the cheque was signed in his presence, in order to disprove the same, it is necessary to send the disputed cheque for expert opinion. In fact, there was no delay on the part of the petitioner in filing the application. Immediately after the accused was examined, he filed the application. But, the learned magistrate had dismissed the application on the ground that it is filed belatedly and the attempt of the petitioner only to prolong the case which is not correct.