1. Petitioner is an accused in seven different complaints filed under Section 138 of the Negotiable Instruments Act, 1881 9for short 'NI Act'). In these proceedings under section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS'), he challenges three different orders issued by the learned Magistrate separately, in all seven cases.

2. In all these cases, the petitioner challenges three orders. Annexure A8 is an order dated 17-02-2024 dismissing petitioner’s application for sending the cheque to the Central Forensic Science Laboratory. Annexure A14 is an order dated 24-07-2024 dismissing petitioner’s application to summon a private person under Section 348 of the BNSS and to mark documents, while Annexure A16 is an order dated 12-06-2024 dismissing petitioner’s application to issue summons to the complainant to produce documents allegedly in his custody. As the impugned orders are issued in cases arising between the same parties and all of them were issued, though separately, but on the same dates and since the issues raised are also identical, these cases are disposed of by this common order.

3. S.T. No.18/2016, S.T. No.181/2016, S.T. No.39/2016, S.T. No.02/2016, S.T. No.38/2016, S.T. No.31/2016 and S.T. No.180/2016 pending before the Judicial First Class Magistrate Court-II, Thodupuzha are the complaints filed by the second respondent alleging the offence under section 138 of the NI Act committed by the petitioner. According to the complainant, petitioner had joined various chitties with the defacto complainant and after the chitties were priced and disbursed to him, he defaulted in repaying the amounts. Subsequently in repayment of the defaulted amounts, petitioner issued cheques, which, when presented for encashment, returned dishonoured for the reason ‘funds insufficient’. Despite the issuance of statutory notices, there was no response from the accused and hence the complaints were filed.

4. Since the accused denied the signature on all the cheques and contended that they were forged by the complainant and its staff, an application was filed on 09.09.2021 for sending the cheque for forensic examination. Though the applications were initially dismissed, subsequently, in Crl.M.C No.4371 of 2021 and connected cases, this Court directed the cheques to be sent for forensic examination. The Forensic Science Laboratory Kerala, by its report opined that the signatures on all the disputed cheques belonged to the accused himself

5. Being dissatisfied with the report from the Forensic Science Laboratory, petitioner filed an application to send the cheque for examination to the Central Forensic Science Laboratory. By the first of the impugned order dated 17.02.2024, (Annexure A8) the said application was dismissed. While so, the trial commenced and the examination of the complainant in all the cases was completed. A list of four witnesses was filed by the accused of which three of them were the Managing Director, Director and Manager of the complainant. In the meantime, petitioner is purported to have obtained an opinion about the signature on the cheque from a private expert by name Mr. Khan Sahib. Thereafter, an additional list of witnesses was filed including the Branch Manager of the complainant as well as the private handwriting expert. Though the petitioner sought for issuance of summons to all the witnesses mentioned in Annexure A12, the learned Magistrate issued summons only to two of the three witnesses mentioned in Annexure A12. Petitioner filed another application seeking a direction to the complainant to produce certain documents like the original chit agreement, copy of the chit agreement and copy of balance sheets filed before the Registrar of Companies. The learned Magistrate by the impugned orders dismissed all three applications. Aggrieved by the above dismissals, these petitions under Section 528 BNSS have been preferred.

6. I have heard Sri. Varghese C. Kuriakose, the learned counsel for the petitioner as well as Smt. Sreeja V and Sri.C.N.Prabhakaran, the learned Public Prosecutors.

7. The proceedings under Section 138 of the NI Act relate to a transaction that took place in the year 2013. Despite issuing the statutory notices, the accused failed to reply and hence the complaints were filed in the year 2014. The complainant filed civil suits as well as criminal complaints. In 2021, the accused prayed for sending the cheques for forensic examination. Though the Magistrate dismissed those applications, subsequently, this Court directed all the cheques to be forwarded to the Forensic Science Laboratory of the Government of Kerala as per order dated 15-03-2022 in Crl.M.C No. 4365/2021 and connected cases. However, the report from the FSL affirmed that the signature on the cheques belonged to the accused. Dissatisfied with the report, petitioner sought a direction to send the cheque for examination to Central Forensic Science Laboratory, which was dismissed by Annexure A8 order dated 17.02.2024. The said order was not challenged until this petition.

8. In the meantime, petitioner is purported to have approached a private handwriting expert and obtained a report. He wants to examine the said witness through the process of court by issuing summons to him. The court declined to issue summons to the private handwriting expert and also dismissed the application for production of certain documents.

9. In the impugned Annexure A8 order dated 17.12.2024, the learned Magistrate has specifically mentioned that the expert who compared the signatures and prepared the Forensic Reports has not been examined by the accused as a witness. Without examining the said expert and analysing the opinion given by him, there is no bonafides in filing a petition to send the cheques to the Central Forensic Science Laboratory. The accused is stated to have been protracting the matter for the last several years under one pretext or the other. After obtaining an adverse report from the State Forensic Science Laboratory, it is not open for an accused to keep on demanding that the disputed signature be sent to another laboratory. As rightly observed by the learned Magistrate, the opinion of a handwriting expert is not substantive evidence and the ultimate decision is that of the court. The petitioner is always at liberty to adduce appropriate evidence to prove that the signature did not belong to him. The learned Magistrate came to the conclusion that without examining the expert from the State Forensic Science Laboratory, who gave a report pursuant to the direction of the court, sending the cheque to the Central Forensic Science Laboratory is only an attempt to delay the trial further. The said finding of the learned Magistrate cannot be said to b

10. Section 45 of the Indian Evidence Act, 1872, which deals with opinion of experts, states that when the Court has to form an opinion as to the identity of handwriting, the opinion of persons specially skilled in such matters are relevant facts. The views expressed by an expert is not conclusive and is, on the other hand, only an opinion. The parties are free to let in evidence challenging its correctness and the Court is the ultimate arbiter to arrive at its own conclusions on the basis of evidence on record. The evidentiary value of the opinion of an expert depends upon the reasons given by him in his report. When direct evidence is forthcoming, even in respect of those aspects spoken to by an expert, the Court is not precluded from acting on such direct evidence, disregarding even the report of an expert.

11. The value of an expert's opinion should be adjudged in the same way as the evidence of any other witness and the reasons given by the expert in forming the opinion are always open to scrutiny and its soundness has to be tested in the light of the reasons given. In the decision in Koragan v. Koran [1978 KLT 872] it has been observed that it is always open to the opposite party to place materials in the form of cross-examination of the expert himself or other counter-evidence before the Court to shake the foundation on which an expert opinion is formed. The counter-evidence may be the opinion of another person who is equally an expert in the matter.

12. However, once a report was elicited from an expert through the process of court, it is not open for a party, that too in a private complaint under section 138 of the NI Act, to keep using the process of the court to obtain another report, without even setting aside the first report. Repeated references to experts through court, for their opinion, when the report already obtained is unfavourable, is not a legally acceptable procedure to be resorted to in a trial. Otherwise, there will be no end to such requests and it can even lead to an unending process with repeated requests. In this context it is relevant to refer to the decision of the Andhra Pradesh High Court in R. Bhaskar Reddy v.Chinni @ Chengal Reddy [(1998) 3 ALD 113], wherein it was held that a party cannot seek an opinion from another expert when the earlier report was not favourable to him. Therefore the challenge against Annexure A8 orders in all these cases fail.

13. In Annexure A14, while declining to issue notice to the private expert, the learned Magistrate has observed that the report of the expert not being substantive evidence, it is not necessary to issue summons. Reliance was placed upon the judgment of the High Court of Jharkhand in Chethan Sharma v. State of Jharkhand (Crl.M.P. No.2764/2023). Though the court should be circumspect while appreciating the evidentiary value of a report obtained without the intervention of the court, there is no restriction in obtaining such a report. However, when such a report is obtained from a private expert without the intervention of the Court, and that too when the originals of the cheques in question are in the custody of the Court, the party who obtained such a report cannot insist that the Court should issue summons to such a private witness. Nothing prevented the petitioner from examining the said witness on his behalf especially since that person's report was obtained by the petitioner without the intervention of the court. Private witnesses can certainly be brought in by parties to the litigation.

14. The decision in Muhammed Sahir v. State of Kerala [(2024) 4 KHC 449] referred to by the learned Counsel for the petitioner does not apply to the facts of the present case. The witnesses in Muhammed Sahir’s case (supra) were Officials of the Government department. Further, in the instant case, the attempt is only vexatious and to delay the proceedings. In such a scenario, the learned Magistrate was justified in declining to issue summons to a private witness of the petitioner. Having regard to the above circumstances and the reasons stated by the learned Magistrate, I do not find any cause to interfere with Annexure A14 orders in all these cases, as well.

15. Even as regards Annexure A16 order, declining to issue directions for production of documents, the learned Magistrate has specifically mentioned that the attempt of the petitioner is to question what has already been admitted. The documents that are sought to be produced through the application are documents relating to the chit transaction. The chit transaction has been admitted by the petitioner and the defence taken is one of discharge of liability. To prove discharge of liability, the documents that are sought to be produced have no bearing especially since the accused has admitted receiving money pursuant to the chit transaction. Therefore Annexure A16 orders also do not require any interference.

16. Thus all the impugned orders are well considered and the reasons given are legally tenable too. The orders therefore do not warrant any interference.

17. Of late, courts have been witnessing attempts to delay the conclusion of trials especially in cases arising under section 138 of the N.I Act. One of the easiest ways to protract such proceedings is to request the cheque to be sent for expert opinion. Though bonafide applications ought not to be rejected on the grounds of delay, when the court is satisfied that an application is vexatious or intended to delay the proceedings, certainly the trial court is entitled to reject such applications instead of meekly and blindly accepting the request for sending the cheque for forensic examination. The circumstances arising in each case ought to be appreciated by the trial court while arriving at such a conclusion. Reference in this context to the decision in Francis v.Pradeep [(2004) 2 KLT 1080] and Reacon Engineers v. Kalyani Interiors and Others [(2019) 5 KHC 822] are relevant.

18. In the instant case, petitioner had admittedly joined the chitty and had even received the chit amount. No reply notice was concededly issued after receipt of the statutory notice. It is quite explicit that the attempt of the petitioner is to delay and protract the trail of the cases and the learned Magistrate was justified in finding so. More than 10 years have elapsed and the cause of the complainant would be seriously prejudiced apart from stultifying the very object and purpose of the statute if the case is not disposed of at the earliest.

19. In such circumstances, while dismissing all these petitions, it is observed that the learned Magistrate shall take every endeavour to dispose of all the complaints pending as S.T. No.18/2016, S.T. No.181/2016, S.T. No.39/2016, S.T. No.02/2016, S.T. No.38/2016, S.T. No.31/2016 and S.T. No.180/2016 at the earliest, without further delay. The Registry of this Court shall communicate this order to the learned Magistrate immediately.

All these petitions are dismissed.