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SAJEEVAN, S/O RAGHAVAN versus M.P.MUHAMMED, AGED 61 YEARS

High Court of Kerala

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SAJEEVAN, S/O RAGHAVAN v. M.P.MUHAMMED, AGED 61 YEARS - Crl MC No. 618 of 2007 [2007] RD-KL 4932 (7 March 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 618 of 2007()

1. SAJEEVAN, S/O RAGHAVAN,
... Petitioner

Vs

1. M.P.MUHAMMED, AGED 61 YEARS,
... Respondent

2. STATE OF KERALA REPRESENTED BY

For Petitioner :SRI.GEORGE MATHEW

For Respondent : No Appearance

The Hon'ble MR. Justice R.BASANT

Dated :07/03/2007

O R D E R

R.BASANT, J

Crl.M.C.No.618 of 2007

Dated this the 7th day of March 2007

O R D E R

The petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act. Notice of demand under Section 138 of the Negotiable Instruments Act did not admittedly evoke any response. That the cheque is drawn on a cheque leaf issued to the petitioner by his bank to operate his account is not disputed. There is no contention that any stop payment memo was issued to the bank. The petitioner has raised a contention in the course of the trial that he had not signed in the cheque. At the stage of defence evidence, the petitioner wanted the cheque to be sent to the expert. The learned Magistrate, by the impugned order, rejected that prayer holding that the request appears to be one intended to protract the proceedings only. Accordingly, the learned Magistrate dismissed the petition.

2. The learned counsel for the petitioner relies on the dictum in Bindhu v. Sreekantan Nair [2007(1) KLT 525] where the earlier decision Francis vs. Pradeep [2004(2) KLT 1080] was sought to be explained. The learned counsel submits that, in the facts and circumstances of this case, the learned Magistrate Crl.M.C.No.618/07 2 must have exercised the discretion under Section 254(2) Cr.P.C in favour of the petitioner.

3. I must alertly remind myself of the nature, quality and contours of the jurisdiction of this court under Section 482 Cr.P.C. The impugned order is an interim order. The law frowns upon challenge against interim orders which will have the result of protracting the proceedings. This is evident from the bar under Section 397(2) Cr.P.C. But, even in spite of the bar, where the conscience of the court is satisfied that the interests of justice might suffer, powers under Section 482 Cr.P.C are always available to this court to do justice. Normally and ordinarily, an order like Annexure-A3 must already wait for challenge along with the final decision in the prosecution if such challenge be necessary.

4. Coming to the facts of this case, I am not at all persuaded to agree that the powers under Section 482 Cr.P.C can or ought to be invoked. The facts referred above coupled with the fact that no admitted signature at an undisputed point of time is even made available to the court for perusal, does appear to me to be of crucial significance. The specimen signature card is not produced nor has the Bank Manager been Crl.M.C.No.618/07 3 examined to show that there is variation between the signature in the cheque and the specimen signature available with the bank.

5. The soul of a prosecution under Section 138 of the Negotiable Instruments Act will be lost if there is no expeditious disposal. If the cheques were to be mechanically sent to the expert at every request, the soul of such prosecutions will certainly be lost. An alert discretion has to be exercised under Section 254(2) Cr.P.C by the learned Magistrate. I am satisfied that such discretion exercised by the learned Magistrate does not warrant interference at this stage by invoking the powers under Section 482 Cr.P.C.

6. In the result, this Criminal Miscellaneous Case is dismissed. But I may hasten to observe that I have only intended to express the opinion that powers under Section 482 Cr.P.C need not be invoked and the dismissal of this Criminal Miscellaneous Case will not in any way fetter the rights of the petitioner to challenge the impugned order, if the same be found to be necessary along with the final decision in the prosecution.

(R.BASANT, JUDGE)

jsr Crl.M.C.No.618/07 4 Crl.M.C.No.618/07 5

R.BASANT, J

C.R.R.P.No.

ORDER

21ST DAY OF JULY 2006


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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