2019 (7) TMI 1946 - HC - Indian Laws

Dishonor of cheque - rebuttal of presumption - submission is that a presumption runs against the signatory of the cheque even if the contents were not filled in by him - HELD THAT - The petitioners as accused persons facing trial on a criminal charge are entitled to raise all defences available to them in law and prove facts as may be sufficient to rebut the effect of the presumption that may be invoked by the opposite side. At the same time, in a criminal case arising out of a private complaint, it is not proper to seek reference to such mater for opinion by Government Examiners of Questioned Documents, who are otherwise overloaded with their work arising out of the police cases. The Metropolitan Magistrate will facilitate opportunity to the hand- writing expert that may be engaged by the petitioners for examining and taking photographs of the questioned documents in the court and thereafter give reasonable time for his opinion to be brought on record. At the same time, caution is administered that the needful will have to be done within one month from today by the petitioners and no undue indulgence for enlargement of time for opinion to be brought on record will be taken. Petition disposed off.

Summary

Issues:
- Criminal prosecution under Section 138 of the Negotiable Instruments Act, 1881.
- Dispute over signatures on a cheque.
- Request for reference of questioned documents to a Government Examiner of Questioned Document.
- Challenge to the order of the Metropolitan Magistrate.
- Entitlement of accused persons to raise defenses.
- Permission to engage a hand-writing expert.

Analysis:
The judgment deals with a criminal prosecution initiated against the petitioners under Section 138 of the Negotiable Instruments Act, 1881, based on allegations of commission and omission related to a specific cheque. The first petitioner admitted to his signatures on the cheque but denied knowledge of its contents, while the second petitioner disputed the signatures altogether. The complainant bank relied on a communication bearing signatures of the second petitioner, contested by the petitioners. The case had reached the defense evidence stage.

The petitioners sought a reference of questioned documents to a Government Examiner of Questioned Document, which was rejected by the Metropolitan Magistrate. The bank argued that a presumption exists against the signatory of the cheque even if the contents were not filled by him. However, the court emphasized the right of accused persons to raise defenses and prove facts to counter any presumption invoked by the prosecution. It was deemed improper to burden Government Examiners with private complaint cases, leading to the court granting the petitioners the liberty to engage a hand-writing expert of their choice.

The court ordered the Metropolitan Magistrate to facilitate the hand-writing expert's examination of the questioned documents in court and provide a reasonable time for the expert's opinion to be presented. The petitioners were cautioned to complete this process within one month, without seeking unnecessary extensions. The judgment disposed of the petition and accompanying application with these directives, allowing the petitioners to seek expert opinion on the authorship of the questioned writings to support their defense in the ongoing criminal trial.