SUDHAMMA T Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act.The signature in the cheque is not disputed. Notice of demand though duly received and acknowledged did not admittedly evoke any response.Cognizance was taken. In the course of the trial, the petitioner took the stand that the cheque was issued as security in a chitty transaction between the petitioner and the complainant. According to the petitioner, payments have been made as per Ext.D1 pass book in which the complainant has made entries and affixed his signatures in token of having received amounts from the accused. The complainant denied Ext.D1 and the petitioner hence made a request that the said passbook Ext.D1 may be sent to the expert. The learned Magistrate, by the impugned order, rejected the said prayer.

(2.) The petitioner claims to be aggrieved by the impugned order. The learned counsel for the petitioner submits that the petitioner has consistently asserted that there was a chitty transaction between the petitioner and the complainant. To discharge the burden of the petitioner under Section 139 of the Negotiable Instruments Act, she wants to establish the fact that the complainant is not speaking the truth and he is deliberately suppressing the existence of the chitty transaction between him and the petitioner/accused. It is for this purpose that the petitioner wanted the pass book to be sent to the expert. The blank signed cheque handed over as security in connection with the chitty transaction is being misused by the complainant. This is the short and specific plea raised by the accused.

(3.) It is true that notice of demand did not evoke any response.It is true that the signature in the cheque and handing over of the cheque are admitted by the accused. But notwithstanding all these, in the facts and circumstances of this case - I have been taken in detail through the depositions of the witnesses - I am certainly persuaded to agree that this is a fit case where authentic evidence as to whether there was a chitty transaction between the accused and the complainant must be procured by the court for a proper disposal of the case. In this view of the matter, I am satisfied that the petition to get the alleged entries and signature of the complainant in the pass book examined and verified by anexpert must havebeenallowed by the learned Magistrate.