2022 (7) TMI 136 - HC - Indian Laws

Dishonor of Cheque - ageing and writing on the cheque - application of the petitioner wherein he had made a prayer for sending the cheque to F.S.L. for opinion of the Hand-writing Expert and forensic science opinion, rejected - grievance is that the disputed cheque was a blank cheque issued in 2011 and has been misused in 2018 - HELD THAT - As per the accused, the complainant is not the holder in due course. The cheque was fabricated in the year 2018 and it was not against any legal debts or liabilities. It was also urged that the complainant had no source of income to lend Rs.10 Lacs and thus, there was no enforceable debt. The accused had also filed a complainant under sections 406, 420, 506(2) and 114 of IPC and thereafter, the Chapter Case under Section 107 of Cr.P.C. was filed against the complainant and witness Amratbhai Gopalbhai Patel. It is alleged by the petitioner accused that Amratbhai Gopalbhai Patel, who was his partner, has given the said cheque in the year 2011 for 2-3 days as the complainant insisted for a blank cheque. It was informed to the petitioner accused that the complainant had torn off the cheque and therefore, the petitioner, on assurance so given, had not proceeded further but thereafter, according to him, the complainant and Amratbhai Gopalbhai Patel in collusion have misused the cheque and filed false complaint under section 138 of the N.I. Act. In the present case, the facts in the complaint suggest that the signed cheque was handed over but the facts in the complaint also suggests that he was informed that the complainant would receive the amount so mentioned in the cheque. While it is the case of the complainant that it was a cheque that was signed in blank while the facts suggest that the cheque amount was also noted in the cheque, which the complainant has disputed. It is his specific case that the cheque was given in the year 2011 while it was misused in 2018 - Since there was no direction to pay the amount so stated to be mentioned in the cheque, the applicant has disputed the age of ink utilized for the signature of the applicant on the cheque and prayed for comparison of the ink used for text on the body of the cheque, alleging that the endorsement was not in full on the instrument. Considering the facts and circumstances of the case and the principle laid down by the Apex Court inT. NAGAPPA VERSUS Y.R. MURALIDHAR 2008 (4) TMI 789 - SUPREME COURT , the petitioner is required to be granted opportunity for adducing evidence keeping in mind the larger object of fair trial. Appeal allowed.

Summary

Issues Involved:
1. Denial of opportunity for defense and fair trial.
2. Application for sending the cheque to F.S.L. for Hand-writing Expert and forensic science opinion.
3. Rejection of application by trial and revisional courts.
4. Right to rebut evidence under Section 138 of the NI Act.
5. Admission of signature and alleged misuse of cheque.
6. Legal precedents supporting the right to fair trial and defense.

Issue-wise Detailed Analysis:

1. Denial of Opportunity for Defense and Fair Trial:
The petitioner argued that the rejection of his application to send the cheque to F.S.L. for Hand-writing Expert's opinion led to the denial of a fair trial. He claimed that the complainant, in collusion with his partner, misused a blank cheque given in 2011, which was later fabricated in 2018 to file a complaint under Section 138 of the NI Act. The petitioner emphasized the right to defend himself and the necessity for a fair opportunity to present rebuttal evidence.

2. Application for Sending the Cheque to F.S.L.:
The petitioner filed an application (Exhibit-32) during the trial, seeking forensic analysis of the cheque to determine the age of the ink and handwriting. This application was initially rejected by the trial court, and the rejection was upheld by the revisional court. The petitioner contended that this analysis was crucial to support his defense that the cheque was issued in 2011 and misused in 2018.

3. Rejection of Application by Trial and Revisional Courts:
The trial court rejected the application without assigning reasons, and the revisional court dismissed the subsequent appeal. The revisional court reasoned that the grounds for the application were in the nature of proposed defenses, which should be addressed during the trial. The revisional court also noted that the accused had admitted to issuing the cheque and signing it, and there was no dispute about the amount mentioned in the cheque.

4. Right to Rebut Evidence under Section 138 of the NI Act:
The petitioner argued that under Sections 139 and 118 of the NI Act, there is a presumption in favor of the holder of the cheque, which the accused is entitled to rebut. The petitioner cited legal precedents, including T. Nagappa v. Y.R. Murlidhar and Kalyani Baskar v. M.S. Sampoornam, to support his argument that an accused must be given the opportunity to present rebuttal evidence and defend himself as part of a fair trial.

5. Admission of Signature and Alleged Misuse of Cheque:
The complainant admitted to filling in the body of the cheque, and the accused admitted to signing it. However, the petitioner argued that the cheque was given as security in 2011 and was misused in 2018. The petitioner also filed a complaint under Sections 406, 420, 506(2), and 114 of IPC, alleging that the complainant and his partner conspired to misuse the cheque.

6. Legal Precedents Supporting the Right to Fair Trial and Defense:
The court referred to the Supreme Court's decisions in T. Nagappa v. Y.R. Muralidhar and Kalyani Baskar v. M.S. Sampoornam, which emphasized that an accused has the right to a fair trial and to present evidence in defense. The court noted that denying the petitioner the opportunity to send the cheque for forensic analysis would violate his right to a fair trial.

Conclusion:
The court concluded that the petitioner should be granted the opportunity to present rebuttal evidence to ensure a fair trial. The impugned orders passed by the trial and revisional courts were quashed and set aside. The trial court was directed to send the disputed cheque to F.S.L. for Hand-writing Expert's opinion as requested in the application Exhibit-32. The court emphasized the importance of concluding the trial expeditiously. The rule was made absolute.