2009 (11) TMI 1021 - HC - Indian Laws

Negotiable Instrument Act - offence punishable u/s 138 - Whether the Courts below have acted legally in declining to refer the cheque to an expert for examination? - Petitioner said cheque in question be referred for an examination by an expert contending that he had issued a blank cheque and a bond paper to the complainant, who has written thereon the amount etc. according to his choice and the writings in the cheque and the bond are not in his handwriting - HELD THAT - The reason which has weighed with the Magistrate to dismiss the application is that there is specific admission with regard to the signature on the cheque. The Learned Magistrate did not consider the specific case of the accused that, the contents of the cheque and the bond, are not in his hand and the same have been entered by misusing the cheque and the bond and it is in that context, the prayer was made for sending of the cheque an expert's opinion. The view of the Trial Judge was mechanically upheld by the Revision Court, without noticing the case of the revision petitioner. Since the Courts below have failed to consider the case of the accused to the aforesaid effect, they have acted with material irregularity, which has resulted in illegal orders being passed, requiring interference. No doubt, the suggestion has been denied by P.W.2. P.W.3 is an attestor to Ex.P-7, the promissory note. P.W.3 has admitted that, there is difference in the ink with reference to the contents of the document and the name appearing as 'Hadimani' and that they are in different pen. Keeping in view the line of cross-examination of PW's by an interim order, the petitioner was directed to deposit Rs. 3,50,000/-. The petitioner has deposited a said sum in this Court. The Registry is hereby directed to invest the said amount in any Nationalised Bank, for a period of six months. In case the respondent succeeds, the invested amount along with accrued interest shall be paid to the complainant. If the complaint were to be dismissed, the invested amount along with interest earned thereon, be refunded to accused. Keeping in view the prima facie facts and record, it has to be held that, both the Trial Court and Revision Court, by dismissing the application, have acted illegally. When the case of the accused is that, his cheque has been mis-used, though the presumption u/s 118(a) and 139 of the Act can be raised, still an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. Denying of the opportunity, is illegal. Considering the facts and circumstances of the case, in my opinion, it is necessary to have an expert opinion on the following question - Whether the writings appearing in the cheque Ex.P-1 and the promissory note Ex.P-7 have been written on the same day and time, when the cheque and the promissory note was signed as 'I.M. Hadimani' or in other words, whether the age of the writing in Ex.P-1 and 7 is the same as that of the signature 'I.M. Hadimani' appearing on Ex.P-1 and P4? Petition is allowed.

Summary

Issues Involved:
1. Whether the Trial Court and the Revision Court acted legally in declining to refer the cheque to an expert for examination.
2. Whether the accused was denied a reasonable opportunity to establish his defense.

Detailed Analysis:

Issue 1: Whether the Trial Court and the Revision Court acted legally in declining to refer the cheque to an expert for examination.

The petitioner faced a criminal charge under Section 138 of the N.I. Act for issuing a cheque that was returned unpaid. The petitioner contended that the cheque and a bond paper were blank when handed over and were misused by the complainant. The Trial Court dismissed the application to refer the cheque to a handwriting expert, reasoning that the accused admitted the signature on the cheque, thus shifting the burden of proof to the accused. The Revisional Court upheld this decision, stating that since the accused admitted his signature, it was unnecessary to send the cheque for expert opinion.

The High Court referenced the Supreme Court's decision in T. Nagappa v. Y.R. Muralidhar, which emphasized that even if presumptions under Sections 118(a) or 139 of the Act can be raised, the accused must be given an opportunity to rebut the evidence. The denial of this right equates to a denial of a fair trial. Similarly, in Kalyani Baskar v. M.S. Sampoornam, the Supreme Court held that the accused has the right to present evidence to rebut the prosecution's case, and denying this right results in an unfair trial.

The High Court concluded that the Trial Court and the Revisional Court failed to consider the accused's specific claim that the cheque's contents were not in his handwriting and were entered by misusing the blank cheque and bond. This failure constituted a material irregularity, necessitating interference.

Issue 2: Whether the accused was denied a reasonable opportunity to establish his defense.

The High Court observed that the cross-examination of P.W.1 revealed admissions regarding the loan transaction and the amounts involved. However, the accused suggested that only a portion of the amount was due, and the complainant misused the cheque by writing a higher amount. P.W.2 and P.W.3's testimonies indicated inconsistencies in the ink used and the dates of transactions.

The High Court noted that the accused's application to refer the cheque and bond for expert examination was crucial for establishing his defense. The denial of this application by the lower courts deprived the accused of a fair opportunity to rebut the prosecution's case. The High Court emphasized that rules of procedure designed to ensure justice must be scrupulously followed, and denying the accused the opportunity to present his evidence was illegal.

Conclusion:

The High Court allowed the petition, set aside the impugned orders, and directed the Trial Court to refer the cheque and bond to a handwriting expert. The cost of the expert was fixed at Rs. 10,000/-, to be deposited by the accused. This decision underscores the importance of allowing the accused a fair opportunity to present evidence in his defense, ensuring a fair trial.