2024 (2) TMI 4 - SC - Indian Laws

Dishonour of Cheque - insufficient funds and account dormant - rebuttable presumption - seeking a direction to obtain the opinion of the handwriting expert after comparing the admitted signature of the accused appellant and the signature as appearing on the disputed cheque - HELD THAT - The law is well-settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391 CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that nonrecording of such evidence may lead to failure of justice. Certified copy of a document issued by a Bank is itself admissible under the Bankers Books Evidence Act, 1891 without any formal proof thereof. Hence, in an appropriate case, the certified copy of the specimen signature maintained by the Bank can be procured with a request to the Court to compare the same with the signature appearing on the cheque by exercising powers under Section 73 of the Indian Evidence Act, 1872 - if at all, the appellant was desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque. The presumptions under the NI Act albeit rebuttable operate in favour of the complainant. Hence, it is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf. So far as the allegation of the accused appellant that he did not receive the notice under Section 138 of the NI Act is concerned, it would be for the appellate Court while deciding the appeal to examine such issue based on the evidence available on record and thus, there was no requirement for the appellate Court to have exercised power under Section 391 CrPC for summoning the official from the Post Office and had rightly rejected the application under Section 391 CrPC. There are no infirmity in the impugned orders warranting interference - appeal dismissed.

Summary

Issues involved:
The judgment involves the rejection of an application under Section 391 of the Code of Criminal Procedure, 1973 by the High Court, pertaining to the prosecution of the accused for an offence under Section 138 of the Negotiable Instruments Act, 1881.

Details of the Judgment:

Issue 1 - Rejection of Application under Section 391 CrPC:
The appellant accused filed an application under Section 391 CrPC seeking to send the cheque to a handwriting expert for comparison, alleging that his signatures were forged. The trial court rejected the application as a delay tactic, leading to the appellant's conviction. The Principal Sessions Judge also rejected a similar application during the appeal stage. The High Court upheld this rejection, emphasizing that the power to record additional evidence under Section 391 CrPC should only be exercised in specific circumstances to prevent injustice.

Issue 2 - Presumptions under the Negotiable Instruments Act:
The judgment highlighted Section 118 of the NI Act, which establishes presumptions regarding negotiable instruments. The court noted that the appellant did not question the bank witness regarding the genuineness of the signatures on the cheque. The cheque return memo clearly stated the reason for dishonor, indicating insufficient funds and a dormant account, not signature mismatch. The presumption of genuine endorsements on the cheque favored the complainant, and the accused needed to lead evidence to rebut this presumption.

Issue 3 - Evidence Collection and Rebuttal of Presumptions:
The court emphasized that the accused should have procured a certified copy of his specimen signatures from the bank to challenge the signatures on the cheque. Despite opportunities, the accused failed to question the bank official about the signature mismatch. The court held that the appellate court was not obligated to assist the accused in collecting evidence and that the burden of rebutting presumptions lay with the accused through appropriate defense evidence.

Issue 4 - Rejection of Application for Post Office Official:
Regarding the allegation of not receiving the notice under Section 138 of the NI Act, the court stated that the appellate court could address this issue based on existing evidence. Therefore, there was no need to summon a Post Office official under Section 391 CrPC. The judgment concluded that there was no basis to interfere with the impugned orders, and the appeal was dismissed for lacking merit.

Separate Judgment by Judges:
The judgment was delivered by B. R. Gavai and Sandeep Mehta, JJ.