BINDU Vs. SREEKANTAN NAIR

JUDGEMENT

(1.) The petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act. The signature in the cheque is not disputed. Fairly specific contention appears to have been raised as early as in the reply to the notice of demand that the cheque was husband of the petitioner/accused availed a loan of Rs.1.75 lakhs from the complainant. It is the fairly specific contention of the petitioner/accused that the cheque was issued as a black signed cheque as security for due repayment of the said amount of Rs.1.75 lakhs. It is the further specific contention that the other entries in the cheque were not made by the accused, but by the complainant. That cheque is being mis-utilised to stake a totally false and fanciful claim for Rs.6.25 lakh, it was contended.

(2.) Trial has commenced. The complainant's evidence is already over. At the stage of defence evidence the petitioner filed an application that the cheque may be sent to the expert. That prayer was rejected by the learned Magistrate by placing reliance on the decision in Francis Vs.Pradeep 2004(2)KLT 1080. In as much as the signature is admitted it is not necessary to send Ext.P1 cheque for expert opinion, it was held. The precise observations which are relevant which appear in paragraph 3 of the impugned order are as follows:

(3.) The learned counsel for the petitioner submits that the learned Magistrate did not correctly appreciate the dictum in Francis (supra). It is not the law that if the signature in the cheque is admitted such a cheque need never be sent to the expert. Here the accused had taken a very specific stand that except the signature, the other entries are not written in her hand. I have been taken through the cross-examination of the complainant/PW1 wherein the complainant is shown to have specifically asserted that all the writings were made and the signature were affixed by the petitioner in the presence of the complainant.