2016 (5) TMI 1583 - HC - Indian Laws

Dishonor of Cheque - comparison of handwriting of the applicant-accused by Handwriting Expert - requirement of stamping or not - Section 45 of the Evidence Act - HELD THAT - I am at a complete loss to understand as to on what basis the learned Magistrate applied Section 20 of the Act. Section 20 speaks about a stamped, incomplete, inchoate instrument delivered to any person with prima facie authority to complete the instrument and encash the same. The learned Lahore High Court in A.R. Dower v. Sohan Lal 1937 (4) TMI 25 - LAHORE HIGH COURT held that Section 20 relating to the encashability of the inchoate stamped instrument will not apply to the cheque as it does not require stamp. Division Bench of the learned Kerala High Court in C.T. Joseph v. I.V. Philip 2001 (3) TMI 1081 - KERALA HIGH COURT has observed that Section 20 of the Negotiable Instruments Act will not apply to the cheque as the same does not require any stamp under the Stamp Act and the aforesaid provision would apply to other incomplete, inchoate instruments which require stamp under the Stamp Act. It was only if the Magistrate was of the opinion that the object of the petitioner in moving the application for comparison of the signatures was vexatious and had no relevance in the proceedings could he have refused the permission. But, once this was not the case, then I see no reason why the learned Magistrate ought not to have sent the documents for examination enabling the same to be compared by the Handwriting Expert which would facilitate in arriving at a correct decision - the petitioner cannot be convicted without an opportunity of being given a fair chance to present his evidence and if it is denied then there would be no fair trial . After-all fair trial includes fair and proper opportunities allowed by law to prove the parties innocence. Adducing evidence in support of the defence is a valuable right. The order passed by the learned Magistrate is not sustainable in the eyes of law and is accordingly set aside. Consequently, the application filed by the petitioner is allowed and the cheque in question is directed to be sent for comparison of the handwriting by the Handwriting Expert to be appointed by the learned trial Magistrate - Petition allowed.

Summary

Issues:
Petition under Section 482 Cr.P.C. seeking quashing of order for comparison of handwriting under Indian Evidence Act. Application rejected by trial Magistrate citing Section 20 of Negotiable Instruments Act. Legality of Magistrate's order challenged in High Court.

Analysis:
The case involved a petition under Section 482 Cr.P.C. seeking to quash an order passed by the Judicial Magistrate 1st Class, which dismissed the application for comparison of handwriting under the Indian Evidence Act. The respondent had filed a complaint under Section 138 of the Negotiable Instruments Act claiming dishonour of a cheque, while the petitioner contended that the cheques issued were for security and the amount was interpolated by the respondent. The trial Magistrate rejected the application for handwriting comparison, citing Section 20 of the Negotiable Instruments Act, stating that the petitioner's admission of signing the cheque gave implied authority to complete it. The High Court found fault with the Magistrate's application of Section 20, citing precedents that clarified its inapplicability to cheques.

The High Court referenced judgments from various High Courts to establish that Section 20 of the Negotiable Instruments Act does not apply to cheques as they do not require stamping. The court emphasized that the purpose of the petitioner's application for handwriting comparison was not vexatious and should have been allowed unless it was aimed at delaying proceedings. Citing a Supreme Court ruling, the High Court highlighted the importance of fair trial, allowing the accused to present evidence to prove innocence. The court set aside the Magistrate's order, directing the cheque to be sent for handwriting comparison by an expert, emphasizing the right to present evidence in defense for a fair trial.

In conclusion, the High Court found the Magistrate's order to be legally unsustainable and set it aside, allowing the petitioner's application for handwriting comparison. The court stressed the importance of fair trial and the right to present evidence in defense, ensuring a just legal process.