Crl.MC/91/2007 of A.V.RAGHAVAN Vs C.MAHIN on 31 December 2012

O R D E R

The petitioner is a complainant in C.C.No.576/2005 in the file of theJudicial First Class Magistrate Court-II, Kasaragod and the first respondentis the accused therein. The complaint is one under Section 138 of theNegotiable Instruments Act. The order passed by the court below inC.M.P.No.368/2006 has been produced as Annexure-I. The petitioner filedthe above petition to send Ext.P1 cheque mentioned therein along with theadmitted signature of the accused to a Handwriting Expert. This step wastaken by the petitioner in the light of the contention of the accused that hehad not put his signature on Ext.P1 cheque.

2. One of the contentions raised by the first respondent/accusedbefore the court below was that the petition is filed under wrong provisionof law, namely, under Section 254(2) of the Code of Criminal Procedureand, therefore, the petition is not maintainable. The said contention wasaccepted by the court by stating that the petition is filed under a wrongprovision of law. On that reason itself, the petition is dismissed.

3. Learned counsel for the petitioner Shri T.R.Ravi submitted thatit is well settled provision of law that non quoting of a provision or wrongquoting cannot be a ground to reject the application.

Crl.M.C No.91/2007

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4.

The first respondent is not appearing in spite of service of notice.

5. Reliance is placed on the decision of the Apex Court in T.Nagappa v. Y.R.Muralidhar [(2008) 5 SCC 633]. The Apex Court in theabove Judgment in para.13 has held as follows:

“............ It is now a well-settled principle of law that non- mentioning or wrong mentioning of provision of law would notbe of any relevance, if the court had the requisite jurisdiction topass an order.”

6. As far as the complainant in the matter is concerned, if expert evidence is required, the complainant is well right in seeking the aid of thecourt. Therefore,the circumstances, pointed out by the complainant couldhave been examined by the court to find out whether the application couldbe allowed. The court below has made a passing reference in the orderthat the first respondent had denied his signature in the reply notice andthe petitioner could not take any steps against the accused. In any view ofthe matter, the same is not a real test. Therefore, Annexure-I order isquashed. There will be a direction to the court below to reconsider thematter and pass appropriate orders after hearing all parties on the merits.Since it is a matter of the year 2006, an order will be passed expeditiously.The criminal miscellaneous case is allowed as above.

Sd/-

(T.R. Ramachandran Nair, Judge.)