A JESUDHASAN Vs. M GOPI

JUDGEMENT

(1.) THE petitioner has come forward with this Revision seeking for the relief of setting aside the order passed by the learned Judicial Magistrate No.II, Nagercoil, in CrI.M.P. No.7371 of 2006 in S.T.C. No.6071 of 2003 dated 15.6.2007 dismissing the Petition filed by the petitioner herein seeking for the relief of sending the disputed cheque, Ex.A.1 for handwriting expert opinion as the petitioner disputed the signature contained in the cheque.

(2.) THE learned counsel for the petitioner submitted that the defence of the petitioner is to the effect that the cheque kept by the petitioner was stolen and the same was misused by the complainant/respondent herein for filing this case implicating the petitioner for the offence under Section 138 of the Negotiable Instruments Act. THE learned counsel for the petitioner further contended that even during the cross-examination of P.W.1. It was suggested to the complainant/P.W.1 that the cheque was stolen and the same was misused for filing the present case for the offence under Section 138 of the Negotiable Instruments Act. It is also contended by the learned counsel for the petitioner that the petitioner also raised defence to the effect that of disputing the signature found in the cheque. THErefore, it is contended by the learned counsel for the petitioner that with a view to rebut the presumption contemplated under Section 139 of the Negotiable Instruments Act, the handwriting expert opinion in respect of the signature contained in the disputed cheque is very much essential.

(3.) IT is seen that the petitioner is facing trial for the alleged offence under Section 138 of the Negotiable Instruments Act. The grievance of the petitioner is that the petitioner has filed a Petition before the learned trial Magistrate seeking for the relief of sending the disputed cheque for the hand-writing expert opinion as the petitioner is disputing the signature contained in the cheque involved in this case and the same was dismissed by the learned Magistrate. A perusal of the deposition of P.W.1 and other materials available on record clearly shows that the petitioner has not taken the defence to the effect that he is disputing the signature contained in the cheque involved in this case. On the other hand, the defence taken by the petitioner is to the effect that the cheque kept by the petitioner was stolen and the same was misused by the complainant/respondent herein for filing the present case for the alleged offence under Section 138 of the Negotiable Instruments Act. IT is further submitted by the learned counsel for the petitioner that the contents of the cheque is also not in the handwriting of the petitioner herein. A perusal of the Petition filed by the petitioner herein for seeking for the relief of sending the cheque for handwriting expert opinion clearly shows that the petitioner has sought for the relief only on the ground that Ex.A.1, cheque does not contain the signature of the petitioner/accused and the same is a forged one. There is also an averment to the effect that there is variation in the disputed cheque in respect of amount, date, etc.