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2022 (9) TMI 264 - SC - Indian LawsDishonor of Cheque - permission to engage a hand-writing expert to seek an opinion on whether the authorship on the questioned writings - rebuttal of presumption - Section 139 of the NI Act - HELD THAT - Section 139 of the NI Act raises a presumption that a drawer handing over a cheque signed by him is liable unless it is proved by adducing evidence at the trial that the cheque was not in discharge of a debt or liability. The evidence of a hand-writing expert on whether the respondent had filled in the details in the cheque would be immaterial to determining the purpose for which the cheque was handed over. Therefore, no purpose is served by allowing the application for adducing the evidence of the hand-writing expert. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under Section 139. The fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability - Undoubtedly, it would be open to the respondents to raise all other defenses which they may legitimately be entitled to otherwise raise in support of their plea that the cheque was not issued in pursuance of a pre-existing debt or outstanding liability. Appeal allowed.
Issues:
- Permission to engage a hand-writing expert to determine authorship on a disputed cheque - Application of Section 139 of the Negotiable Instruments Act - Liability of a drawer who signs a cheque - Rebutting the presumption under Section 139 - Relevance of details filled in the cheque by a person other than the drawer Analysis: 1. The appeal questioned the High Court's decision allowing the respondent to engage a hand-writing expert to determine authorship on a disputed cheque under Section 138 of the Negotiable Instruments Act (NI Act). The Supreme Court allowed the appeal, emphasizing that the evidence of a hand-writing expert would be immaterial in determining the purpose for which the cheque was handed over. Section 139 of the NI Act raises a presumption that a drawer handing over a signed cheque is liable unless proven otherwise during trial. 2. The case involved a body corporate alleging that a consortium of companies availed credit facilities, and a cheque towards dues was dishonored. The appellant initiated proceedings under Section 138 of the NI Act. The first respondent admitted to signing the cheque, leading to the question of liability under the Act. 3. The Supreme Court cited precedents like Bir Singh v. Mukesh Kumar and Kalamani Tex v. P. Balasubramanian, reiterating that a drawer who signs a cheque is presumed liable unless evidence rebuts the presumption under Section 139. The court highlighted that even if details in the cheque are filled by someone other than the drawer, it does not affect the liability unless proven otherwise. 4. The judgment clarified that the presumption under Section 139 is rebuttable, and the standard of proof required is that of a "preponderance of probabilities." The accused can raise a defense based on materials submitted by the complainant. The report of a hand-writing expert alone cannot rebut the presumption arising from the signing of the cheque. 5. The Supreme Court allowed the appeal, setting aside the High Court's order permitting the engagement of a hand-writing expert. The report obtained as per the impugned order was deemed inadmissible during trial. The decision did not affect other defenses the respondents may raise regarding the issuance of the cheque not in discharge of a debt or liability. 6. Consequently, the application for a hand-writing expert examination was dismissed, and the rights and contentions of the parties during the trial were preserved. Pending applications were disposed of, concluding the judgment.
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