2022 (6) TMI 910 - HC - Indian Laws

Dishonor of Cheque - validity of cheque - application filed by the petitioner/accused to examine the fingerprint and handwriting expert has been dismissed - HELD THAT - The application in question had been moved for examining the fingerprint and handwriting expert to compare the handwriting of the signatures and the handwriting in which the remaining particulars of the cheque were filled in as the ink used in affixing signatures on the cheque in question was different from the ink used in filling the remaining particulars of the cheque in question. The response of the complainant therein was that a complaint was filed on 10.10.2014 and the application had been moved after almost five years on 24.07.2019 with a view to delay the trial one way or the other. A perusal of the judgments in T. Nagappa 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 rebuttal 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 expert 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 being dishonoured. The judgment in T. Nagappa's case 2008 (4) TMI 789 - SUPREME COURT lays down the law more elaborately and accurately than the judgments in Bir Singh's case 2019 (2) TMI 547 - SUPREME COURT , 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 application of the petitioner-accused is allowed.

Summary

Issues Involved:
1. Admissibility of the application for examining the fingerprint and handwriting expert.
2. Consideration of mandatory provisions under Sections 243 Cr.P.C. and 247 Cr.P.C.
3. Examination of judicial precedents regarding handwriting expert testimony.
4. Evaluation of the accused's right to a fair trial.
5. Applicability of judgments from higher courts.

Detailed Analysis:

1. Admissibility of the Application for Examining the Fingerprint and Handwriting Expert:
The petitioner filed an application to examine the fingerprint and handwriting expert to compare the handwriting on the cheque. The trial court dismissed this application, reasoning that since the accused admitted to signing the cheque, the expert's testimony was unnecessary. However, the petitioner contended that the cheque was issued as a blank signed cheque for security purposes and was misused by the complainant.

2. Consideration of Mandatory Provisions Under Sections 243 Cr.P.C. and 247 Cr.P.C.:
The petitioner's counsel argued that the trial court failed to consider the mandatory provisions under Sections 243 Cr.P.C. and 247 Cr.P.C., which allow the accused to present defense evidence unless the application is made for vexation, delay, or defeating the ends of justice. The trial court did not record any such findings, thus allegedly violating these provisions.

3. Examination of Judicial Precedents Regarding Handwriting Expert Testimony:
The judgment extensively reviewed several precedents:
- Kalyani Baskar v. M.S. Sampoornam: The Supreme Court held that denying the accused the opportunity to present evidence, including expert testimony, deprives them of a fair trial.
- T. Nagappa v. Y.R. Muralidar: Emphasized the accused's right to rebut the presumption under Sections 118(a) or 139 of the Negotiable Instruments Act by presenting evidence, including expert testimony.
- Shri. Ishwar v. Sri. Suresh: The Karnataka High Court allowed the examination of handwriting experts to determine if the body of the cheque and the signature were written at the same time.
- Baburao Madhavrao Munnemanik v. Vishwajit Pratapsing Pradesh: The Bombay High Court reiterated the importance of fair trial principles, allowing the accused to present handwriting expert testimony.
- Raj Kumar v. M/s Ram Krishan & Sons: The Himachal Pradesh High Court held that denying the accused the opportunity to examine handwriting experts violates the right to a fair trial.

4. Evaluation of the Accused's Right to a Fair Trial:
The judgment highlighted that the accused's right to a fair trial includes the right to present evidence in defense. Denying the application for handwriting expert examination would prevent the accused from effectively rebutting the presumption of liability under the Negotiable Instruments Act. The court emphasized that fair trial principles must be scrupulously followed to ensure justice.

5. Applicability of Judgments from Higher Courts:
The court examined judgments from the Supreme Court and various High Courts to determine the correct legal position. It concluded that the judgments in T. Nagappa's case and Kalyani Baskar's case provide a more elaborate and accurate interpretation of the law, supporting the accused's right to examine handwriting experts.

Conclusion:
The court found merit in the petitioner's application and quashed the impugned order dated 24.07.2019. The petitioner was allowed to examine the handwriting expert as a defense witness within four weeks, and the trial court was directed to conclude the trial within eight weeks thereafter. This decision underscores the importance of the accused's right to a fair trial and the necessity of allowing defense evidence, including expert testimony, to ensure justice.