B.R.Sasidharan Vs Abdulla

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2025:KER:24897

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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 K. BABU

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FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946

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OP(C) NO. 648 OF 2020

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AGAINST THE ORDER DATED 05.02.2020 IN OS NO.18 OF 2018
OF ASSISTANT SESSIONS COURT/ADDITIONAL SUB COURT,NORTH
PARAVUR

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PETITIONER/PETITIONER/DEFENDANT:

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B.R.SASIDHARAN
AGED 50 YEARS
S/O.PRABHAKARA MENON, BRAHMANI HOUSE, 48/390,
COCHIN CORPORATION, ELAMAKKARA POST, ELAMAKKARA
KARA, EDAPPALLU SOUTH VILLAGE, KANAYANNUR TALUK,
ERNAKULAM DISTRICT, PIN-682 026.

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BY ADV M.G.JEEVAN

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RESPONDENT/RESPONDENT/PLAINTIFF:

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ABDULLA

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AGED 65 YEARS, S/O.METHIAN NAINA, BISMILLA MANZIL,
VADAKKEKALATHIL, MAKKANAI, MANNAM P.O., PARAVUR
VILLAGE, PARAVUR TALUK, PIN-683 513.

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BY ADV JOSEPH GEORGE

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
21.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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OP(C) NO. 648 OF 2020

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2025:KER:24897

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K.BABU, J.

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O.P (C) No. 648 of 2020

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-------------------------------------------------------Dated this the 21^st day of March, 2025

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J UDGMENT

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The defendant in a suit for money challenges the dismissal of an application seeking to send the disputed cheque for expert opinion. The plaintiff instituted the suit for recovery of money based on Ext.A1 cheque. The defendant resisted the suit

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denying the execution of the cheque. The Court below proceeded with the trial. The case was listed for trial and placed in the special list. After the examination of the plaintiff as PW1, the petitioner/defendant filed I.A.No.1/2020 seeking to send Ext.A1 cheque for expert opinion. The learned Sub Judge dismissed the application as per Ext.P5 order.

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I have heard the learned counsel for the

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petitioner/defendant and the learned counsel for the respondent/plaintiff.

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The learned counsel for the petitioner/defendant submitted that the specific case of the plaintiff is that the defendant himself filled up the entries in the cheque and to

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establish his defence, examination of the disputed cheque by an expert is highly required.

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The learned counsel for the respondent/plaintiff submitted that though the petitioner/defendant raised a contention in the written statement that he had not filled up the entries in the cheque, and he only put his signature and tendered the same to the plaintiff in a blank form, the belated application seeking to send the cheque for expert examination is only an attempt to prolong the matter. The trial Court dismissed the application on the ground that the defendant ought to have made the request to prove his defence before the commencement of trial. The trial Court further observed that the defendant conveniently waited until the examination of PW1 was over to make an application to send the cheque for expert opinion. The trial Court further held that there are no admitted writings on record to get the disputed cheque compared. The stand taken by the Court below was that no blanket direction to examine the cheque is possible.

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The petitioner/defendant admitted his signature in the disputed cheque. In the written statement he specifically denied that the other entries in the cheque were not made by

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him. He had not taken steps to send the disputed cheque for examination, though the Court specifically posted the matter for pre-trial steps.

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Considering that the petitioner/defendant has admitted his signature on the disputed cheque, this Court is not in a position to find fault with the trial Court.

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Adducing evidence in support of the defence is a valuable right. In Kalyani Bhaskar v. M.S.Sampooranam [2007 (2) SCC 258], the Apex Court considered a similar question. In Kalyani Bhaskar, the Apex Court, while considering an application for sending the cheque for expert opinion, observed that the Court should have granted such a request unless he thinks that the object of the accused is vexation or delaying the proceedings. Kalyani Bhaskar is an authority for the proposition that if the intention of the defendant is to protract the proceedings, the request for sending the cheque for expert opinion can be rejected.

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While dealing with a case under Section 138 of NI Act, in Francis v. Pradeep [2004 (2) KLT 1080], this Court held thus:-

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“The easiest way to protract proceedings under Section 138 of the N.I. Act and thus stultify the spirit and object of the provisions of Section 138 of the N.I. Act is to request that the cheque be sent to the expert. The soul of the provision will be lost if there is no expeditious enforcement. On account of pressure of work at the Forensic Science Laboratory, it is common knowledge that the expert will not be able to give the report within a period of three to four years. Convenient protraction can be achieved by requesting that the cheque be forwarded to the expert for examination. It is for the Trial Court to alertly consider the acceptability of such request and ensure that the cheque is forwarded to the expert only if satisfactory reasons are available”. (emphasis supplied).

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The law is trite that any and every request to forward the cheque to the expert need not be blankly and meekly accepted by the trial Court. The Court has to be satisfied that the request is bona fide having regard to the facts and circumstances of the case.

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In the present case, the petitioner/defendant has the liberty to move an application under Section 72 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) requesting the Court to compare the writings in Ext. A1 cheque with any admitted writings.

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The learned counsel for the petitioner further submitted that the Court may not be in a position to compare the admitted writings with the disputed writings.

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In Murari Lal v. State of M.P. [(1980) 1 SCC 704 : 1980 SCC (Cri) 330] the Apex Court considered the circumstances in which the Court may itself compare disputed and admitted writings. The Court held thus:-

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“12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill-able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.”

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The decision in Murari Lal (supra) was followed in Lalit Popli v. Canara Bank and Others [(2003) 3 SCC 583 : 2003 SCC (L&S) 353] .

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In S.Sivadas v. State of Kerala

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(MANU/KE/4089/2022) , this Court observed thus:-

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“34. In a case where the Court is constrained to undertake the responsibility of comparing the disputed writing or signature with the admitted handwriting or signature, it shall make a careful study, if necessary, with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. The judgment shall contain the reasons for any conclusion based on a comparison of the handwriting/signature if the Court proceeds to record a finding thereon. Conclusions arrived based on a casual or routine glance, or perusal shall not be relied on to enter into a finding leading to the conviction of an accused.”

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Therefore, if the petitioner makes a request for comparison of his admitted or proved writings with the disputed writings in Ext.A1 cheque, the trial Court shall invoke Section 72 of the Bharatiya Sakshya Adhiniyam/Section 73 of the Evidence Act.

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The Original Petition is disposed of as above.

Sd/-

K.BABU,

JUDGE

NM