MANOJ KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petition is directed against an order dated 28.05.2019 in C.M.P. No. 1480 of 2019 in S.T. No. 1919 of 2015, which is a prosecution launched by the second respondent before the Judicial First Class Magistrate Court, Adimaly (for short 'the trial court') against the revision petitioner.

(2.) S.T. No. 1919 of 2015 is a prosecution initiated under Section 142 of the Negotiable Instruments Act, 1881 (for short 'NI Act') wherein commission of the offence punishable under Section 138 NI Act was alleged against the revision petitioner. During the pendency of the prosecution, C.M.P. No. 1480 of 2019 was filed by the accused, the petitioner herein under Section 243 of the Code of Criminal Procedure seeking for sending the hand writing in the entries in the cheque for getting opinion from the expert. The application was dismissed by the trial court for many reasons, first among which was filing of the same belatedly. The second was based on a judgment rendered by the Apex Court in Pattu Rajan v. The State of Tamil Nadu 2019 (5) Scale 428 cited in the order holding that opinion of the expert is only an opinion and therefore, it is not bound by the evidence of the expert. The reason thirdly was that, the court is empowered to reach a conclusion on the authorship of the handwriting and signature by comparison as envisaged under Section 73 of the Evidence Act. Fourthly it was observed by the trial court that, there is no mandate in the NI Act that the drawer should write the particulars in the cheque and therefore, no purpose will be served by obtaining a report on authorship of handwriting from an expert. The Court observed that when a signed cheque is issued, it may give an implied authority to the drawee to fill up the incomplete entries therein. In the view of the Court, the accused had admitted the signature in the cheque and by issuing the same had given the authority to the complainant to fill up the instrument and even if it is established that the entries were filled by the complainant, it will not be of no use. The application was dismissed for reasons as stated above and the aggrieved accused is now before this Court in the revision petition on hand.

(3.) The contention of Sri. Babu Paul, the learned counsel representing the revision petitioner was that, the right to defend a case against him is a fundamental right and in exercise of that right he has approached the trial court. According to him, the observation of the trial court that the application is a belated one is incorrect, since it was moved on 13.05.2019, immediately after closure of the evidence of the complainant on 10.05.2019. Secondly, it was contended by the learned counsel that though the signature in the cheque is admitted, the issuance of the same is denied. According to him, the complainant and the accused were partners of a firm namely 'Studio Indian Photo Club', which had already been dissolved. According to him, the accused was in the habit of keeping signed cheques for business purposes of the firm while the partnership was subsisting and the cheque in question was taken by the complainant without his knowledge and the prosecution in question was launched misusing the same.