2020 (11) TMI 429 - HC - Indian Laws

Dishonor of Cheque - argument of the learned counsel for the petitioner is that, when it is the specific defence of the accused in the trial Court that the cheque in question though was bearing the signature of the accused, but the same was issued not to the complainant, but to one M/s. Mahaveera Traders at Kampli as a security in a cloth purchase transaction - HELD THAT - The defence of the accused is that, the cheque was signed and issued by him, however, to a different establishment called M/s.Mahaveer Traders, but not to the present complainant. Section 20 of the N.I. Act makes it amply clear that the person who signs the cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque has been issued for payment of debt or discharge of liability. He undertakes the risk that the instrument remains to be an inchoate instrument. In such an event, the age of the ink may not matter much. However, it is also made clear that, merely because the accused application seeking expert's opinion regarding the age of the ink is rejected, that itself would not take away the defence of the accused in its entirety. However, the accused would be still at liberty to put forth his defence to rebut the presumption, if any, formed in favour of the complainant. Petition dismissed.

Summary

Issues:
Application for reference of disputed cheque for expert opinion under Sections 45 and 73 of the Indian Evidence Act rejected by trial Court.

Analysis:
The petitioner, an accused in a case under Section 138 of the Negotiable Instruments Act, filed an application seeking reference of the disputed cheque for expert examination to determine the age of the ink used. The trial Court rejected this application, leading to the petitioner approaching the High Court through a petition. The petitioner argued that the ink's age was crucial as it could support his defense that the cheque was not issued to the complainant but to a different entity. On the other hand, the respondent contended that the mere age of the ink would not affect the case since the signature on the cheque was admitted by the accused. The respondent relied on a Supreme Court order emphasizing that the drawer remains liable even if the instrument is filled by someone else, as long as it is duly signed. The Apex Court's order highlighted that the accused admitting to signing the cheque negates the need for expert examination of the ink's age.

The High Court analyzed the contentions of both parties and referred to Section 20 of the N.I. Act, which states that the person who signs the cheque and hands it over to the payee remains liable unless evidence is presented to rebut the presumption that the cheque was issued for payment of a debt or discharge of a liability. The Court noted that the accused's defense was that the cheque was indeed signed by him but issued to a different entity, not the complainant. Therefore, the age of the ink might not be a decisive factor in this context. The Court emphasized that the rejection of the application for expert opinion on the ink's age does not diminish the accused's defense entirely. The accused still has the opportunity to present his defense to counter any presumptions favoring the complainant.

After considering the arguments and legal provisions, the High Court concluded that the circumstances did not warrant intervention under Section 482 of the Cr.P.C. Consequently, the Court dismissed the petition, affirming the trial Court's decision to reject the application for expert examination of the disputed cheque. With the main petition dismissed, any ancillary applications also stood disposed of accordingly.