2022 (5) TMI 1391 - HC - Indian Laws

Dishonor of Cheque - forgery of signature in the cheque - Rejection of application of the petitioner-accused to examine a handwriting expert in her defence - whether signatory of the cheque need to fill in the body of the cheque for the cheque to be a valid cheque? - proceedings initiated under section 138 of NI Act - HELD THAT - A perusal of the judgments in T. NAGAPPA VERSUS Y.R. MURALIDHAR 2008 (4) TMI 789 - SUPREME COURT , would clearly establish that when a contention is raised that the complainant has misused the cheque by filling up the body of the same, even in a case, where a presumption can be raised under Section 118(a) or 139 of the Negotiable Instruments Act, an opportunity must be granted to the accused for adducing evidence in rebuttable thereof. As the law places burden on the accused, he must be given an opportunity to discharge it. The complainant will invariably not disclose that the body of the cheque has been filled up by him or at his instance even where the signatures on the cheque has been accepted by the accused. Without doubt, the holder of the cheque has the authority to fill the same and the cheque would be a valid instrument but to start with, the first step available with an accused to rebut the presumption that the cheque had been issued for the discharge of a legally enforceable debt is by examining a handwriting to testify that the signatory and the author of the body of the cheque are different persons. Even if the difference in writing is established, the accused will still have to rebut the presumption under the Act, that the cheque is a valid tender and that he had made the payment to the complainant but despite that fact, the complainant filled up the cheque and presented the same leading to it's dishonouring - On the other hand, if the permission to examine the handwriting expert is not permitted on the ground that the holder has the authority to fill the body of the cheque, then the accused cannot even begin to establish his defence that a cheque issued as security has been filled up by someone other than him and misused. Thus, it would be unfair to shut out the defence of the accused at the threshold. The judgment in T. Nagappa's case lays down the law more elaborately and accurately, which only reiterate the position of law that the signatory of the cheque need not filled in the body of the cheque for the cheque to be a valid cheque. The petitioner-accused shall examine the handwriting expert as a defence witness within a period of four weeks. The application of the petitioner-accused is allowed - petition allowed.

Issues Involved:
1. Quashing of the order rejecting the examination of a handwriting expert.
2. Validity of the cheque under Section 20 of the Negotiable Instruments Act.
3. Right to fair trial and the opportunity to present a defense.
4. Relevance of handwriting expert's testimony in cheque dishonor cases.

Issue-wise Detailed Analysis:

1. Quashing of the order rejecting the examination of a handwriting expert:
The petitioner sought to quash the order dated 26.05.2017 by the Judicial Magistrate, 1st Class, Chandigarh, which rejected her application to examine a handwriting expert. The petitioner argued that the cheque had been forged by the complainant by filling in the date and amount. The Trial Court, relying on Section 20 of the Negotiable Instruments Act, concluded that the holder in due course could fill in the body of the cheque, and thus, the handwriting expert's examination was deemed superfluous. The Additional District Judge upheld this decision, referencing the Supreme Court's ruling in Sampelly Satyanarayana Rao, which stated that the dishonor of a post-dated cheque issued for loan repayment makes the accused liable once the issuance and signature are admitted.

2. Validity of the cheque under Section 20 of the Negotiable Instruments Act:
The Trial Court and the Additional District Judge both relied on Section 20, which allows the holder in due course to fill in the body of a signed cheque. This legal provision implies that even if the handwriting expert determined that different individuals filled in the body and signed the cheque, it would not aid the accused's defense. The courts cited precedents, including Gurmeet Singh v. State of Haryana, to support this interpretation.

3. Right to fair trial and the opportunity to present a defense:
The petitioner contended that denying the examination of the handwriting expert violated her right to a fair trial. She referred to the Supreme Court's judgments in Kalyani Baskar v. M.S. Sampoornam and T. Nagappa v. Y.R. Muralidhar, which emphasize the accused's right to present evidence in their defense. The courts must ensure that the accused has the opportunity to rebut the prosecution's case, and denying this right equates to denying a fair trial. The petitioner argued that the handwriting expert's report could provide material for rebutting the complainant's case.

4. Relevance of handwriting expert's testimony in cheque dishonor cases:
The petitioner cited multiple judgments, including those from the Karnataka High Court and the Bombay High Court, which supported the examination of handwriting experts to determine if the body of the cheque was filled by someone other than the drawer. These judgments highlighted that the accused must be allowed to present evidence to rebut the presumption under Sections 118(a) and 139 of the Negotiable Instruments Act. The courts emphasized that the accused should be given an opportunity to prove their defense, and the handwriting expert's testimony could be crucial in establishing whether the cheque was misused.

Conclusion:
The High Court found merit in the petitioner's arguments, emphasizing the right to a fair trial and the opportunity to present a defense. The judgment in T. Nagappa's case was considered more elaborately and accurately laying down the law compared to the judgments in Bir Singh's case, which only reiterated the validity of a cheque filled by the holder. Consequently, the application of the petitioner-accused was allowed, and the orders dated 26.05.2017 and 09.08.2017 were quashed. The petitioner was permitted to examine the handwriting expert within four weeks, and the Trial Court was directed to conclude the trial within eight weeks thereafter.

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