Disposed

Sasuraj v. K.I. Rasheed

Kerala HC20 Jun 2017Crl.MC/2800/2017

Case brief

AI extract

What is this about?

The High Court clarified that since signatures in dishonoured cheques were undisputed, sending specimen signatures to the FSL is unnecessary. The court directed forwarding only specimen handwritings and original cheques (required by an earlier order) to the FSL within 10 days.

What did the court decide?

Directions were issued to send specimen handwritings and original cheques (but not disputed signatures) to the FSL for analysis within 10 days.

Sasuraj Vs K.I. Rasheed — Kerala HC (2017) — LawSathi Research

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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 ALEXANDER THOMAS

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TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939

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Crl.MC.No. 2800 of 2017 ()

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CMP.NO.421/15 IN ST.NO.51/11, 197/11 & 200/11 BEFORE THE JFCM-III, KANJIRAPPALLY

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PETITIONER(S)/COMPLAINANT:

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SASURAJ & COMPANY, KANJIRAPPALLY, REPRESENTED BY ITS PARTNER CHERIAN S.JOSEPH, S/O. SALI CHERIAN, CHEERAVELIL, KANJIRAPPALLY.

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BY ADVS.SRI.LIJI.J.VADAKEDOM

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SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE SRI.TOM E. JACOB

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RESPONDENT(S)/ACCUSED & STATE:

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1. K.I. RASHEED, AGED 56 YEARS, S/O. HAJI IBRAHIM KUTTY, KALLUMKAL HOUSE, KOVILKADAVU, KANJIRAPPALLY - 686 506.

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2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 682 031.

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R1 BY ADV. SRI.K.A.HASSAN R2 BY SRI.JUSTIN MATHEW, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 2800 of 2017 ()

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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ANNEXURE I THE CERTIFIED COPY COMPLAINT S.T. 197/11BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KANJIRAPPALLY.
ANNEXURE II THE COPY OF THE CMP NO. 1142/13 I ST NO. 51/11 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KANJIRAPPALLY.
ANNEXURE III THE COPY OF THE ORDER IN CMP NO.1142/13 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KANJIRAPPALLY.
ANNEXURE IV THE COPY OF THE MEMO SUBMITTED BY THE COUNSEL FOR THE COMPLAINANT IN ST 51/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KANJIRAPPALLY.
ANNEXURE V THE COPY OF THE ORDER DATED 15.5.2015 PASSED BY JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KANJIRAPPALLY IN ST 51/11, 197/11 AND 200/11.
ANNEXURE VI THE COPY OF THE CMP NO. 1196/13 IN ST 51/11, 197/11 AND 200/11 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KANJIRAPPALLY.
ANNEXURE VII THE COPY OF THE ORDER DATED 10.12.2013 IN CMP NO. 1196/13 IN ST 51/11, 197/11, AND 200/11 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KANJIRAPPALLY.
ANNEXURE VIII THE COPY OF THE ORDER DATED 15.5.2015 IN CMP NO. 182/2014 IN ST 51/11, 197/11 AND 200/11 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KANJIRAPPALLY.
ANNEXURE IX THE COPY OF THE CRL.M.C NO. 3472/2015 FILED BY THE 1ST RESPONDENT BEFORE THIS HONOURABLE COURT.
ANNEXURE X THE COPY OF THE ORDER DATED 15.7.2015 IN CRLMC NO. 33472/2015.
ANNEXURE XI THE COPY OF THE CMP 421/2015 IN ST 51/11, 197/11 AND 200/11 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KANJIRAPPALLY.
ANNEXURE XII THE COPY OF THE ORDER DATED 11.11.2016 IN CMP 421/2015 IN ST 51/11, 197/11 AND 200/11 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KANJIRAPPALLY.

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RESPONDENT(S)' EXHIBITS:

NIL

TRUE COPY

P.A.TO JUDGE

ALEXANDER THOMAS, J.

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Crl.M.C.No.2800 of 2017

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Dated this the 20^th day of June, 2017

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O R D E R

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Petitioner is the complainant in ST.Nos.51/2011, 197/2011 and 200/2011 on the files of Judicial First Class Magistrate Court-III, Kanjirappally, in which the 1^st respondent herein has been arrayed as accused, alleging offence punishable under Section 138 of the Negotiable Instruments Act. The Prayer raised by the petitioner in this Crl.M.C is as follows:

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“Hence it is most humbly prayed that this Honourable Court may be pleased to allow this Criminal Miscellaneous Case and quash Annexure-XII Order to allow Annexure-XI petition or in the alternative to set aside Annexure-III order to the extent it directed the sending of signature for comparison by the expert and to direct the sending of handwriting in the cheques for comparison by the expert by allowing AnnexureII petition or to quash Annexure-III order and may be pleased to direct the trial court to consider Annexure-II petition afresh.”

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After hearing both the sides in extensor this Court had passed an order on 30.05.2017 in this case, which reads as follows:

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“It is common ground that both before the court below as well as before this Court the rival parties have

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Crl.M.C.No.2800/2017

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no dispute about the signatures in the dishonoured cheques in question involved in the 3 cases. The only prayer made by the petitioner complainant herein as per Anx.II was to subject the handwritings in the written entries in the cheques for expert opinion to the Forensic Science Laboratory (FSL). This prayer in Anx.II petition has been allowed as per Anx.III order dated 10.12.2013 rendered by the trial court on Crl.M.P. No.1142/2013 in S.T.Nos.51, 197 and 200 of 2011 pending on the file of the Judicial First Class Magistrate's Court-III, Kanjirappally. So the trial court has fully allowed the prayer of the petitioner in Anx.II for subjecting the handwritings in the written entries in the cheques for expert opinion. While it was specifically ordering in Anx.III order that the prayer in Anx.II petition has been allowed, it appears that the learned Magistrate has inadvertently ordered in the further operative portion of that order that the accused is directed to produce his admitted signature for the period in question for sending the same for comparison. This appears to be patent mistake as both sides have fully admitted about the signatures in the dishonoured cheques in question and what has been allowed was only subjecting the handwritings in the written entries in the cheques for expert opinion.

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Though it is stated in Anx.VII order dated 10.10.2013 passed by the learned Magistrate on Crl.M.P.No.1196/2013 in the above S.T. Cases that the cheque in question has already been ordered to be sent to FSL for expert opinion as per the order in

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Crl.M.C.No.2800/2017

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Crl.M.P.No.1142/2013, that ordinarily would be only a reference made by the trial court that the cheque has been ordered to be sent for subjecting the signature for expert opinion. At any rate, it is not clear from Anx.VII whether actually as a matter of fact the cheque in question along with the sample handwritings has already been sent by the court to the FSL for expert opinion.

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When the matter came up for consideration on 26.5.2015, this Court had pertinently queried with the learned counsel appearing for the petitioner complainant as well as the learned counsel appearing for the 1^st respondent accused, as to whether the originals of the dishonoured cheque along with the specimen handwritings of the accused have in fact be already sent to the FSL for expert examination. Both the learned Advocates were unable to precisely appraise this Court as to whether or not the sample handwritings along with the original cheques have in fact been already sent to the FSL for examination. Therefore, this Court had specifically requested the learned Advocates appearing for both sides to ensure that their respective counter parts appearing before the trial court should separately inquire with the court officials concerned in the trial court as to whether or not the specimen handwritings of the accused along with originals of the dishonoured cheques have already been sent to the FSL for expert opinion of the handwriting expert.

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Today when the matter came up for consideration, Sri.Liji.J. Vadakedom, learned counsel

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Crl.M.C.No.2800/2017

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appearing for the petitioner complainant would submit that his counter part in the trial court could ascertain information from the trial court that the originals of the cheque and the specimen handwritings have not so far been actually sent by the trial court to the FSL. However, the learned counsel appearing for the 1^st respondent accused would assert that 66 specimen handwritings of the accused and 66 specimen signatures of the accused have already separately been taken by the trial court in the open court. However, the learned counsel appearing for the 1^st respondent accused would submit that he has not been able to ascertain as to whether or not as a matter of fact, the specimen handwritings and the original cheques have already been actually sent by the court to the FSL.

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Accordingly the Registry will get a detailed report from the Judicial First Class Magistrate's CourtIII, Kanjirappally, which is dealing with S.T.Nos.51, 197 and 200 of 2011 as to whether or not the specimen handwritings of the accused and the originals of the dishonoured cheques have already been actually sent by the trial court to the FSL for expert opinion of the handwriting expert and if the same has already been forwarded, then the copy of the letter of that court forwarding the specimen handwritings and cheques to the FSL should also be enclosed.

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The Registry will obtain report in this regard within 10 days and a copy of this order should also be forwarded to the Magistrate for necessary information and action.”

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Crl.M.C.No.2800/2017 5

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In compliance with this Court’s order dated 30.05.2017, the learned Magistrate submitted a report to the Registry of this Court along with another report of the Junior Superintendent attached to that Court.

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Heard Sri.Liji J.Vadakkedam, learned counsel appearing for the petitioner(complainant) and Sri.K.A.Hasan, learned counsel appearing for the 1^st respondent(accused) and Sri.Justin Mathew, Learned Public Prosecutor appearing for the 2^nd respondent/State.

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In the present case, it is not in dispute that the prayer in Annexure-II has been fully allowed as per Annexure-III order dated 10.12.2013 and so the trial court had only allowed the prayer of the petitioner in Annexure-II for subjecting the handwriting in the written entries in the cheque for expert opinion. It is a common ground of the petitioner/complainant and 1^st respondent/accused that the signature in the dishonoured cheque in question is that of the accused. The complainant would contend that not only the signature but also all the written entries in the cheque except date are that of the accused. Whereas the accused would contend that except the signature in the cheque all other entries in the cheque are not made by him.

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Crl.M.C.No.2800/2017

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It is now evident from the report of the trial court that specimen of handwritings (99 in numbers) and specimen signatures (65 in number) of the accused were taken in open court by the predecessor Magistrate and it was ordered to send to the FSL. But since there was no dispute whatsoever in the signature bearing on the cheque, there was no necessity or relevance whatsoever in taking the specimen signatures of the accused. This would unnecessary cause avoidable confusion as the only dispute between parties is as to the authenticity of written entries in the cheque other than the date.

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In ST.No.51 of 2011 (the lead case), it is also pointed out in the report of the Junior Superintend attached to the trial court that the cheque in question has not so far been sent to the FSL as the complainant had not taken any steps so far to send the same to FSL for expert analysis. The report dated 16.06.2017 of the Junior Superintend attached to the trial court has also been enclosed before this Court. It is further reported by the learned Magistrate that it is evident from the order sheet that after obtaining specimen handwriting of the accused, the learned Magistrate had ordered to send the same to FSL and had also directed to take steps. The complainant had filed

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Crl.M.C.No.2800/2017 7

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Crl.M.C.No.1142 of 2013 (Annexure – II) which was allowed for sending cheques to FSL for expert opinion and that the complainant had not taken any steps to send the same to FSL and this is the sole reason why those cheques could not be sent to FSL.

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Having heard both the sides, this Court is of the view that it is not in dispute that as per Annexure-III order dated 10.12.2013 the prayer in Crl.A.No.1142 of 2013 has been fully allowed thereby the court was obliged to send the specimen handwritings of the accused along with the original of the cheque to the FSL for expert handwriting analysis. This Court now need not conduct any further determination as to the reasons as to why the complainant had not taken further steps in the matter in compliance with the trial court's order. However, one thing is clear that both the sides have no dispute about signature that appear in the dishonoured cheque and so there is absolutely no relevance or necessity to send specimen signatures also to the FSL for examination. That would create unnecessary and avoidable confusion in the matter. In this view of the matter, in modification of all orders passed previously in relation to this case, it is ordered in the interest of justice that the petitioner

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Crl.M.C.No.2800/2017

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shall without any further delay take further steps in the matter as earlier directed by the learned Magistrate for sending the specimen handwritings to FSL and on the petitioner taking further steps in that regard, the trial court should ensure that the specimen handwritings of the accused taken on 18.02.2014 along with the original of the dishonoured cheque in question should be forthwith forwarded to the FSL for analysis by the handwriting expert. It is made clear that the FSL need not subject the specimen signatures of the accused for any handwriting analysis as there is no dispute about that. The petitioner will ensure that steps are taken as directed herein above within ten days from the date of receipt of a copy of this order and after petitioner take further steps in compliance with the trial court’s directions as mentioned herein above and the trial court will ensure that the above said materials are sent to the FSL without much delay at any rate within 10 days therefrom. With these observations and directions, this Crl.M.C. stands finally disposed of.

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Sd/- (ALEXANDER THOMAS, JUDGE)

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TRUE COPY

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P.A.TO JUDGE

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Sasuraj v. K.I. Rasheed

Case brief

What is this about?

What did the court decide?

Sasuraj v. K.I. Rasheed

Case brief

What is this about?

What did the court decide?

What the court decided

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