9911796707
TMI Blog2022 (5) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... xed for leading of defence evidence more particularly, the cross-examination of defence witness as DW-3. 4. The petitioner-accused moved an application for seeking the report of a handwriting expert in respect of the cheque in dispute. The case of the petitioner-accused was that she was an illiterate lady, who signed in Hindi and the said disputed cheque had been forged by the complainant-company by filling the date as well as the amount and the body of the cheque. As per the petitioner, the said cheque was in fact one of five cheques handed over to the complainant-company vide letter dated 11.02.2009 (Annexure P-3) and therefore, it was necessary to examine a handwriting expert to compare the signatures on the cheque with the handwriting on the body of the cheque. 5. A reply to the application was filed by the learned counsel for the complainant. The Trial Court came to the conclusion that as per Section 20 of the Negotiable Instruments Act, when an instrument is duly signed by the drawer and handed over to the holder in due course, the rest of the body of the instrument can be filled by the holder of the instrument and if the same is dishonoured, appropriate proceedings under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efers to the cross-examination of CW-1, where a suggestion has been put to the witness that blank security cheques were issued to the complainant and as per the counsel, there is some sort of an admission of the same by CW-1. 8. On the other hand, the learned counsel for the complainant respondent contends that there is no cause for interference by this Court with the well-reasoned order dated 26.05.2017(Annexure P-1) and impugned order dated 09.08.2017 (Annexure P-2). As per the counsel for the complainant, it is a settled proposition of law that the signatory of the cheque does not necessarily have to be the person, who has filled up the body of the cheque and in terms of Section 20 of the Negotiable Instruments Act, the holder in due course of the cheque can fill up the same, in case the signed cheque has been handed over to the said holder in discharge of a legally enforceable debt. He relies on the judgment in Sampelly Satyanarayana Rao's case (supra) and Bir Singh Versus Mukesh Kumar, 2019(2) RCR (Criminal)1 . 9. I have heard the learned counsel for the parties at length. 10. Before proceeding further, it would be necessary to examine the judgments of the Hon'ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable." (Emphasis supplied) The Hon'ble Supreme Court in T. Nagappa's case (supra), held as under:- 3. On or about 1.8.2006, the appellant filed an application under Section 243 of the Code of Criminal Procedure wrongly mentioned as Section 293 of the Code of Criminal Procedure, 1973 for referring the cheque in question for examination by the Director of Forensic Science Laboratory for determining the age of his signature, contending that the respondent had obtained a signed cheque from him in the year 1999 as a security for a hand loan of Rs. 50,000/- which had been paid back, but instead of returning the cheque, the same has been misused by entering a huge amount, which he did not owe to the appellant." *** *** *** 7. When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bonafide. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), 2007(1) RCR (Criminal) 311 : 2007(1) RAJ 68 : [(2007)2 SCC 258] (in which one of us, L.S. Panta, J., was a member) wherein it was held : "12. Section 243(2) is clear that a Magistrate holding an inquiry under Criminal Procedure Code in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to his choice and the writings in the cheque and the bond are not in his handwriting i.e., the date, the figures, etc., which have been written in a different ink and hence it is very much necessary to send the cheque and the blank bond paper for the opinion of the hand writing expert. According to the accused, the cheque and the bond paper have been mis-used by the complainant by entering a huge amount which he did not owe to the complainant. Objections were filed by the complainant to the application of the accused, wherein it was contended that the accused in order to return the hand loan has issued the cheque for Rs. 7,20,000/- in favour of the complainant and that the accused has also executed a promissory note and it is in order to discharge the hand loan, the cheque was issued, which was returned with an endorsement of the Bank "Insufficient funds". In the circumstances, it is not necessary to send the cheque and the bond paper for the opinion of the handwriting expert. Learned Magistrate, for the reasons recorded by him, did not find merit in the application and dismissed the same. While dismissing the application it was observed that, the accused has admitted the signatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "5. During the course of submissions, learned counsel for the petitioner placed reliance on the observations of the Apex Court, in the matter of T. Nagappa v. Y.R. Muralidhar", 2008(3) RCR (Criminal) 926 : 2008(4) Recent Apex Judgments (R.A.J.) 592 : 2008 (5) SCC 633. The Apex Court, in the said judgment, has referred the observations in the matter of "Kalyani Baskar v. M.S. Sampoornam", 2007 (1) RCR (Criminal) 311 : 2007(1) Recent Apex Judgments (R.A.J.) 68 : (2007)2 SCC 258, which read thus :- "12. Section 243 (2) is clear that a Magistrate holding an inquiry under Criminal Procedure Code in respect of an offence triable by him does not exceed his powers under Section 243 (2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. The cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as expeditiously as possible. Parties to act on the authenticated copy of this order." (Emphasis supplied) The Rajasthan High Court in Sawai Singh Versus State of Rajasthan, (2014) 42 R.C.R. (Criminal) 341, held as under:- "2. The learned counsel appearing for the petitioner submitted that the body of the cheque was filled by the complainant and, hence, it is necessary to send the cheque to the Rajasthan State Forensic Science Laboratory, Jaipur. **** **** **** 4. Furthermore, in the facts and circumstances of the case, the petitioner can always examine hand writing expert in defence to prove his argument that the body of the cheque was filled by the complainant. As until rebutted, presumption is always in favour of the holder of the cheque. 5. Therefore, the present petition is disposed of with the direction that the petitioner, if so advised, may file an application to examine hand writing expert in defence. This Court has no doubt that as and when such an application is filed, the same shall be dealt with and decided by the trial Court in accordance with the provisions of law keeping principle of fair trial into consideration. (Emphasis supplied) The Himach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant accused himself claimed that he had partially filled up the cheque, he thereby gave an implied authority to the complainant to complete the other particulars of the cheque. Therefore, no fruitful purpose shall be served by seeking opinion of the handwriting expert in respect of the writings on the cheque by comparing it with the handwriting of the applicant-accused. When the applicant-accused has admitted his signatures over the cheque and admittedly the cheque i.e. negotiable instrument comes within the category of inchoate stamped instruments under section 20 of the Negotiable Instrument Act, it would not make any difference if the other particulars of the cheque had been filled up by the complainant, or somebody else." *** *** **** 8. That apart, it was only if the Magistrate was of the opinion that the object of the petitioner in moving the application for comparison of the signatures was vexatious and had no relevance in the proceedings could he have refused the permission. But, once this was not the case, then I see no reason why the learned Magistrate ought not to have sent the documents for examination enabling the same to be compared by the Handwriting Expert wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable." 10. Having said so, the order passed by the learned Magistrate is not sustainable in the eyes of law and is accordingly set aside. Consequently, the application filed by the petitioner is allowed and the cheque in question is directed to be sent for comparison of the handwriting by the Handwriting Expert to be appointed by the learned trial Magistrate. 11. The learned counsel for the complainant on the other hand referred to the following judgments:- The Hon'ble Supreme Court in Sampelly Satyanarayana Rao's case (supra), held as under:- "18. In Rangappa v. Sri Mohan, 2010(3) RCR (Criminal) 164 : 2010(3) RCR (Civil) 197 : 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any cogent evidence to show that the cheque was not issued in discharge of a debt. (Emphasis supplied) The Bombay High Court in Prabhakar Xembhu Versus SurendraV. Pai and another, 2006(7) RCR (Criminal) 171, held as under:- "2. To answer the said question a few facts are required to be stated. The applicant herein is the accused in C.C. No. 412/OA/04/B in which he is being prosecuted by the respondent/Complainant under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short) for bouncing of two cheques in the sum of Rs. 3,35,000/- and Rs. 60,000/- dated 4-12-2003 and 4-7-2004 respectively. The applicant/accused did not deny that he had signed the said two cheques but it was his contention that the body of the cheque or the remaining particulars were not written by him. Likewise, it was his contention that he had not signed the A.D. card of the statutory notice sent to him by the Complainant. 4. The learned J.M.F.C. referred to the case of Lilykutty v. Lawrance, (2003(2) DCR 610) to say that no law provided that the entire body of the cheque had to be written by the drawer and also to the case of K. Bhaskaran v. Shankar V. Balan, (1999 CriLJ 606) to say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce any document or other thing. 10. As far as an accused signing a cheque and not signing the body of the cheque is concerned, this Court in the case of Mrs. Shila @ Sudha Manjunath Vernekar v. Mr. Rayaba S. Dessai and another (unreported decision dated 27-1-2005 in Criminal Revision Application No. 29 of 2004) has stated thus : "It appears that there is preponderance of judicial opinion in favour of the proposition that when a cheque is issued duly signed by the drawer and the holder completes the same in other respects namely as regards the amount due and the date, the presumption would still be available to the complainant/holder unless the accused shows that the said particulars were filled in without the consent of the accused/drawer". 11. The said legal position is based on the principle that in such cases there is a tacit or implied consent by the drawer to fill in the details of the amount and date of the cheque. "I will give you a blank signed cheque" is an expression which we heard very often even before prosecutions under Section 138 of the Act came to be lodged and the said expression signifies the drawer gives authority to holder or payee to complete the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o how long the entire process of sending the said documents and obtaining the opinion would take. Likewise, one also does not know whether at a given time how quickly the handwriting expert would be available to be examined in the case after he gives an opinion. It is common knowledge that the Government handwriting experts remain busy with the Government work entrusted to them and many a time take months if not years to come and depose in support of the opinion they have given. In this context, it will be interesting to take note of the objects and reasons which compelled Parliament to pass the Amendment Act 55/2002. It was noted by Parliament that the existing provisions in the Act have been found to be deficient in dealing with dishonour of cheques, not only the punishment provided in the Act has proved to be inadequate but the procedure prescribed for the Courts to deal with such matters has also been found to be cumbersome and the Courts are unable to dispose of the cases expeditiously in a time bound manner in view of the procedure contained in the Act as a result of which a large number of cases are reported to be pending in various Courts in the Country. Keeping that in min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, 2008(3) RCR (Criminal) 926 : 2008(4) Recent Apex Judgments (R.A.J.) 592 : (2008) 5 SCC 633. 9. Argument advanced by the learned counsel for the petitioner was that opportunity of rebuttal must be granted to the accused for adducing evidence and the accused is having a right to defend himself. It was further argued that the petitioner can prove his defence only after getting a report from the FSL regarding the age of the cheque signed and the other body of the cheque filled to ascertain whether the cheques were filled and signed by the same person. It was the consistent stand of the petitioner that the cheques were not filled and signed by the same person. Counsel for the petitioner has relied upon a judgment in the case of T. Nagappa v. Y.R. Muralidhar 2008(3) RCR (Criminal) 926 : 2008(4) Recent Apex Judgments (R.A.J.) 592 : (2008) 5 SCC 633 in which it was observed that it is the accused who knows how to prove his defence and the court being the master of the proceedings must determine as to whether the application filed by the accused under sub-section (2) of Section 243 is bona fide or not. It was further observed that ordinarily an accused should be allowed to approach t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity on the ground that the same had not been signed by him. When the blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque to fill the blank which has been left while signing the cheque. Moreover, if there was any manipulation/alteration in the cheque by the complainant, there was no explanation as to why the petitioner slept over the matter for such a long period. Further the petitioners had been granted only one effective opportunity vide order dated 01.07.2019 which they had availed of. It was thus concluded that the application had been filed merely to delay the matter. Accordingly it was dismissed with costs of Rs.3000/-." (Emphasis supplied) 12. A perusal of the judgments in T. Nagappa's case etc. (supra), 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 gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
