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2015 DIGILAW 1018 (KAR)

K. G. Keerthi Kumar v. K. P. Ramesh

2015-09-01

RATHNAKALA

body2015
ORDER : Rathnakala, J. 1. Heard. These two criminal petitions arise out of the common order passed by the Sessions Court, Kodagu at Madikeri in Cri. R.P. Nos. 70 and 71 of 2010. 2. The fact is that the complainant-Sri K.G. Keerthi Kumar, initiated two separate proceedings against two different persons namely Sri M.S. Kumar and Sri K.P. Ramesh in respect of the offence under Section 138 of the Negotiable Instruments Act, 1881. The accused persons pleaded not guilty and when the evidence was in progress, the accused persons in both the cases filed applications under Section 45 of the Indian Evidence Act, 1872 to refer the cheques in question for experts opinion. The Trial Court allowed both the applications. Aggrieved complainant took the matter in revision before the Sessions Court. In revision, the learned Sessions Judge set aside the order passed in CC No. 607 of 2004, however, confirmed the order in respect of CC No. 540 of 2004 was rejected. The application in respect of CC No. 607 of 2004 on the ground that similar application filed by the accused on the earlier occasion was rejected by the Trial Court and the said order was confirmed by the revision Court. Now the complainant has filed Cri. P. No. 4207 of 2012, aggrieved by the order passed in Cri. R.P. No. 71 of 2010 (in CC No. 540 of 2004), where as the accused in CC No. 607 of 2004 being aggrieved by the order in rejecting his application in Cri. R.P. No. 70 of 2010 has filed Cr. P. No. 5208 of 2013. 3. On perusal of the order of the Sessions Court, it emanates that so far as the order of the Revision Court in rejecting the application of the accused in CC No. 607 of 2004, I am convinced that the order does not warrant intervention, because the very same accused having once suffered the order of rejection of his application which was filed for very same relief did not challenge the said order further. Thereby, he is estopped from filing second application without demonstrating any change of circumstances. 4. Inspite of the order passed in respect of the CC No. 540 of 2004 (in Cri. Thereby, he is estopped from filing second application without demonstrating any change of circumstances. 4. Inspite of the order passed in respect of the CC No. 540 of 2004 (in Cri. R.P. No. 71 of 2010), the Revision Court has confirmed the order of the Trial Court in allowing the application relaying on the decision in T. Nagappa v. Y.R. Muralidhar, AIR 2008 SC 2010 , (2008) 5 SCC 633 , (2008) 2 SCC (Cri.) 677, 2008 AIR SCW 3349 without noticing that it was only the contents of the cheques that was sought to be referred to establish that both cheques are filled up by complainant himself. As such both the accused have not specifically denied their signatures on the cheques in question. Their case was that the cheques were stolen and contents were filled up by the complainant. Since it is found now that the order in rejecting the cheques in CC No. 607 of 2004 is proper, what remains to be referred to handwriting expert is, the cheque in CC No. 540 of 2004, but there is no other document with which this cheque has to be compared. If both cheques were sent for expert opinion, there was occasion for the expert to give his opinion as to whether or not the contents of both cheques are authorised by a common person. 5. In that view of the matter, no purpose would be served by referring a single cheque produced in CC No. 540 of 2004, since the comparison of handwriting between both the cheques is sought. Wherefore petition filed by the complainant in Cri. P. No. 4207 of 2012 filed by the complainant, deserves to be allowed. The petition in Cri. P. No. 4207 of 2012 is allowed. The order of the learned Sessions Judge in Cri. R.P. No. 71 of 2010, whereby learned Sessions Judge confirmed the order of the Trial Court in CC No. 540 of 2004, is set aside. The Cri. P. No. 5208 of 2013 is dismissed. However, the Trial Court can exercise its jurisdiction under Section 73 of the Indian Evidence Act, at the time of final adjudication of the petition. All the contentions of both the parties is left open. Since, it is the matter of 2004, the Trial Court is directed to expedite the matters.