Remanded

K.M. Abdu Rahiman v. C.K. Aboobacker

Kerala HC9 Oct 2012Crl.Rev.Pet/389/2012

Case brief

AI extract

What is this about?

In a cheque bounce case, the High Court held that an expert opinion report was improperly admitted without the expert testifying. The appeal was remanded to the Magistrate to re-evaluate evidence on signature genuineness after the expert is examined as a witness.

What did the court decide?

The judgments of courts below set aside and the matter remanded to the Magistrate for retrial after the expert is examined as a witness.

K.M. Abdu Rahiman Vs C.K. Aboobacker — Cheque Dishonour | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN

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TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934

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Crl.Rev.Pet.No. 389 of 2012 () -----------------------------.NO./ IN CRA.73/2011 of D.C. & SESSIONS COURT,KOZHIKODE .NO./ IN ST.603/2007 of J.M.F.C.-I,THAMARASSERY

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REVISION PETITIONER/APPELLANT/ACCUSED:

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=====================================

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K.M. ABDU RAHIMAN, AGED 49 YEARS S/O.AYAMMED, KAYALMEELAKKAL HOUSE, ELETTIL POST KOZHIKODE TALUK.

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BY ADV. SRI.K.A.SALIL NARAYANAN

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RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:

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=============================================

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1.. C.K. ABOOBACKER

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S/O.IMBICHIMOIDEEN HAJI, CHALIKKOTTUMMEL HOUSE MANGAD.P.O.673 020, UNNIKULAM AMSOM

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KANTHAPURAM DESOM, KOZHIKODE DISTRICT.

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2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR

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HIGH COURT OF KERALA, ERNAKULAM.682 031.

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R1 BY ADV. SRI.VINOD SINGH CHERIYAN R1 BY ADV. SRI.R.SUDHISH R2 BY SRI BIJU MEENATTOOR, PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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S.SIRI JAGAN, J.

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============================== Crl. Rev. Petition No.389 of 2012 (C)

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============================

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Dated this the 9^th day of October, 2012

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J U D G M E N T

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The accused in ST No.603/2007 before the Judicial First Class Magistrate – I, Thamarassery is the petitioner herein. The prosecution was one under Section 138 of the Negotiable Instruments Act. The Magistrate convicted the petitioner and sentenced him to undergo simple imprisonment for three months and to pay rupees One Lakh as compensation to the complainant with a default sentence of imprisonment for one month. In Criminal Appeal No.73/2011 filed by the petitioner before the Court of Sessions, Kozhikode Division, the conviction was attempt, but the sentence of imprisonment was modified into one till rising of the Court and the direction of the Lower Court to pay compensation with the default sentence was maintained. The petitioner is challenging the judgments of the Courts below.

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The contention raised by the petitioner is that, the complainant has not proved that the cheque was signed and issued by the petitioner. According to him, there is considerable

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Crl. Rev. Petition No.389 of 2012 (C)

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doubt regarding the genuineness of the signature in the cheque. That signature contains inks of two different colours; one is red and the other is blue. Petitioner submits that at the instance of the complainant, the cheque was sent for expert opinion and the report of the expert was marked without examining him as a witness. That too, without the knowledge of the petitioner. Therefore, according to the petitioner, the judgments of the Courts below relying on the expert's opinion is clearly vitiated.

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On the other hand, the learned counsel for the first respondent-complainant would submit that, the expert's opinion was marked as Ext.P6 on an application filed by the petitioner for that purpose, to which the petitioner never filed any objections. He further points out that in the 313 statement also, petitioner was specifically asked about Ext.P6 report of the expert. At that time also, petitioner did not raise any objection regarding Ext.P6. Therefore, according to the counsel for the first respondent, it is too late in the day for the petitioner to raise a contention that the expert's opinion was improperly accepted in evidence.

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Counsel for the petitioner would content that petitioner is totally unaware of the petition for marking the expert opinion and

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Crl. Rev. Petition No.389 of 2012 (C)

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the proceedings marking the said document. The counsel for the petitioner points out that, a marking of a document under Section 294 of the Criminal Procedure Code can only be when the genuineness of that document is not disputed or the document is admitted. According to the counsel for the petitioner, the petitioner had no occasion either to admit or deny the genuineness of that document in so far as it was never put to the accused. He submits that, he has not even been served with a copy of the experts opinion or the application for marking the document under Section 294 of the Code of Criminal Procedure.

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I have considered the rival contentions in detail.

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From the proceedings sheet of the Magistrate, I find that on 27.11.2010, the application filed by the complainant for marking the expert's opinion under Section 294 of the Criminal Procedure Code was allowed and the report was marked as Ext.P6. I perused in petition filed by the complainant for marking the document available in the Lower Court records. That does not contain any endorsement to the effect that, the petitioner was served with a copy of that petition. Section 294 of the Criminal Procedure Code reads as follows:

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Crl. Rev. Petition No.389 of 2012 (C)

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No formal proof of certain documents -

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(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be inculded in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.

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(2) The list of documents shall be in such form as may be prescribed by the State Government.

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(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:

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Provided that the Court may, in its discretion, require such signature to be proved.

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As per that provision, when a document is filed in Court, the

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same shall be included in the list and the opposite party shall be called upon to admit or deny the genuineness of such document. Only when the genuineness of that document is not disputed, such document may be read in evidence in the Trial Court. Here, there is no evidence to show that, the petitioner was called upon to admit or deny the genuineness of Ext.P6 expert opinion. As such, the petitioner never had any opportunity to either admit or

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Crl. Rev. Petition No.389 of 2012 (C)

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deny the genuineness of the said document. The fact that petitioner was asked a question during the examination under Secton 313 does not in any way advance the case of the complainant. In the 313 statement, all what has been asked to the petitioner is this.

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Question:

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Ext.P6 report dÉµÞø¢ ÈßBZ ÄæKÏÞÃí Ext.P1 cheque-W ²MßGßøßAáKÄí ®Ká µÞÃáKá.å¯æLCßÜá¢ ÉùÏÞÈáçIÞ?

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Answer:-å ÖøßÏÜï.

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That question does not indicate that the accused has told that Ext.P6 is the expert opinion. Therefore that also cannot give an indication that petitioner had any opportunity to deny the genuineness of the same, at the time of examination under Section 313 also. Even otherwise, it is not sufficient that the petitioner is made aware of the marking of Ext.P6 expert opinion at the time of examination under Section 313.

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The same coupled with the fact that there is some doubt regarding the inks used for signing the cheque, prompts me to hold that the expert opinion could not have been accepted without examining him as a witness. In the above

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Crl. Rev. Petition No.389 of 2012 (C)

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circumstances, I am inclined to remand the matter to the Magistrate, for deciding the matter afresh, after examining the expert also as a witness to prove Ext.P6 document, in accordance with law. For the above purpose, I set aside the judgments of the Courts below. I remand the matter to the Magistrate for retrial, after giving the complainant an opportunity to examine the expert for proving the expert's opinion.

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The parties shall appear before the Magistrate on 05.11.2012. The Criminal Revision Petition is disposed of as above.

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S.SIRI JAGAN JUDGE

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/TRUE COPY/

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P.A.TO JUDGE

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K.M. Abdu Rahiman v. C.K. Aboobacker

Case brief

What is this about?

What did the court decide?

K.M. Abdu Rahiman v. C.K. Aboobacker

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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