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SUPREME COURT OF INDIA
B.R. GAVAI, SANDEEP MEHTA, JJ.
Ajitsinh Chehuji Rathod – Appellant
Versus
State Of Gujarat & Anr. – Respondents
Criminal Appeal No(S). 478 of 2024 (Arising out of SLP(Crl.) No(s). 16641 of 2023)
Decided on : 29-01-2024
(A) Criminal Procedure Code, 1973 – Section 391 – Production of additional evidence – Power to record additional evidence under Section 391 Cr.P.C. should only be exercised when party making such request was prevented from presenting evidence in trial despite due diligence being exercised or that facts giving rise to such prayer came to light at a later stage during pendency of appeal and that non-recording of such evidence may lead to failure of justice.(Para 9)
(B) Negotiable Instruments Act, 1881 – Sections 138 and 118 – Indian Evidence Act, 1872 – Section 73 – Bankers’ Books Evidence Act, 1891 – Section 6 – Criminal Procedure Code, 1973 – Section 482 read with Section 391 – Dishonour of cheque – Rejection of prayer to send cheque to handwriting expert for comparison of handwriting as well as signature appearing thereon – Presumption of endorsements on cheque being genuine operates in favour of holder in due course of cheque – In case, accused intends to rebut such presumption, he would be required to lead evidence to this effect – If at all, appellant was desirous of proving that signatures as appearing on cheque issued from his account were not genuine, then he could have procured certified copy of his specimen signatures from Bank and request could have been made to summon concerned Bank official in defence for giving evidence regarding genuineness or otherwise of signature on cheque – Despite having opportunity, accused appellant did not put any question to bank official examined in defence for establishing his plea of purported mismatch of signature on cheque in question – Appellate Court was not required to come to aid and assistance of appellant for collecting defence evidence at his behest – Presumptions under N.I. Act operate in favour of complainant – No infirmity in impugned orders warranting interference. (Paras 14, 15, 16, 17 and 20)
Facts of the case:
Instant appeal by special leave filed at behest of appellant accused calls into question order dated 25th October, 2023 passed by High Court of Gujarat rejecting Criminal Misc. Application No. 17933 of 2023 preferred by appellant under Section 482 read with Section 391 of Code of Criminal Procedure, 1973.
Findings of Court:
Appellant had sought for comparison of signature as appearing on cheque through handwriting expert by filing an application before trial Court which rejected the same vide order dated 13th June, 2019. Said order was never challenged and had thus attained finality.
Result : Appeal dismissed.
Certainly. Based on the provided legal document, the key points are as follows:
The power to record additional evidence under Section 391 of the Criminal Procedure Code (Cr.P.C.) should only be exercised when it is in the interest of justice. This power is to be used when a party was prevented from presenting evidence despite due diligence or when new facts emerge during the pendency of an appeal that could lead to a failure of justice if not considered (!) .
The court is not obliged to assist the appellant in collecting defense evidence. It is the responsibility of the party to lead relevant evidence, and courts are not required to aid in gathering such evidence on behalf of the appellant (!) (!) .
In cases involving dishonour of a cheque under the Negotiable Instruments Act, the presumption of genuineness of endorsements on the cheque operates in favor of the holder in due course. To rebut this presumption, the accused must lead evidence, such as obtaining certified copies of specimen signatures from the bank and summoning bank officials for examination (!) (!) .
Certified copies of bank documents are admissible under the Bankers’ Books Evidence Act without formal proof, and such documents can be used to compare signatures to establish authenticity or forgery (!) .
The accused had an opportunity to prove that signatures on the cheque were forged by procuring specimen signatures from the bank and summoning bank officials. However, failure to do so means that the presumption of validity remains intact, and the court is not required to assist in collecting such defense evidence (!) (!) .
The order rejecting the application to send the cheque for handwriting comparison was not challenged and has attained finality. The appellate court's role is to evaluate the evidence on record, including issues like receipt of statutory notices, without the need for further evidence collection through powers under Section 391 Cr.P.C. (!) (!) .
Overall, the courts emphasized that the appellant did not demonstrate that he was prevented from presenting evidence despite due diligence, and the existing evidence supports the conclusion that the presumption of the cheque’s genuineness remains valid. Therefore, the impugned orders were upheld, and the appeal was dismissed (!) .
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JUDGMENT :
Mehta, J.
1. Leave granted.
2. The instant appeal by special leave filed at the behest of the appellant accused calls into question the order dated 25th October, 2023 passed by the High Court of Gujarat rejecting the Criminal Misc. Application No. 17933 of 2023 preferred by the appellant under Section 482 read with Section 391 of the Code of Criminal Procedure, 1973(hereinafter being referred to as ‘CrPC’).
3. The appellant was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881(hereinafter being referred to as ‘NI Act’) before the learned trial Court with an allegation that the cheque to the tune of Rs. 10 lakhs issued by the appellant in favour of the complainant Shri Mahadevsinh Cahndaasinh Champavat upon being presented in the bank was dishonoured “for insufficient funds and account dormant”.
4. During the course of trial, the appellant preferred an application dated 13th June, 2019 before learned trial Court with a prayer to send the cheque to the handwriting expert for comparison of the handwriting as well as signature appearing thereon with a plea that his signatures had been forged on the cheque in question. The learned trial Court rejected the application vide order dated 13th June, 2019 itself observing that the application was aimed at delaying the trial. The learned trial Court further observed that the matter was at the stage of defence and the accused could lead evidence to prove his claim pertaining to mismatch of signatures.
5. The order dated 13th June, 2019 passed by learned trial Court was not challenged any further and thus the same attained finality. The trial Court, proceeded to convict the accused appellant vide judgment dated 7th November, 2019.
6. The appellant preferred an appeal before the Principal Sessions Judge, Gandhinagar and during pendency thereof, he filed an application under Section 391 CrPC for taking additional evidence at appellate stage and 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. Another prayer made in the said application was that the concerned officer from the Post Office should be summoned so as to prove the defence theory that the notice under Section 138 of NI Act was never received by the accused appellant.
7. Such application preferred by the appellant was rejected by the learned Principal Sessions Judge, Gandhinagar vide detailed order dated 25th July, 2023, which was carried by the appellant to the High Court by filing the captioned Criminal Misc. Application No. 17933/2023 which came to be dismissed by order dated 25th October, 2023 which is under challenge in this appeal.
8. We have considered the submissions advanced by learned counsel for the appellant and have gone through the impugned order and the material placed on record.
9. At the outset, we may note 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 non-recording of such evidence may lead to failure of justice.
10. It is apposite to mention that the learned first appellate Court, i.e., the Principal Sessions Judge, Gandhinagar had taken note of the fact that during the trial, the appellant examined the witness of the Bank of Baroda in support of his defence but not a single question was put to the said witness regarding genuineness or otherwise of the signatures as appearing on the cheque in question.
11. Furthermore, as per the cheque return memo of the Bank dated 26th February, 2018, the reason for the cheque being returned unpaid is clearly recorded as “funds insufficient and
The central legal point established in the judgment is the accused's right to a fair trial, entitlement to lead evidence to prove innocence, and the provisions of Section 243 of the Code of Criminal ....
The court emphasized that the provision for leading additional evidence under Section 391 Cr.P.C. is not intended to remedy the negligence or latches of a party and that it is not desirable to exerci....
Section 139 of Negotiable Instruments Act raises presumption that a drawer of handing over a cheque signed by him is liable unless it is proved that cheque was not in discharge of debt or any other l....
The accused should be granted an opportunity to adduce evidence in rebuttal if a contention is raised that the complainant misused the cheque.
The consistent stand of the accused and the relevance of insufficient funds in dishonoring the cheque were crucial in reaching the decision.
Accused must prove that a signed cheque was not issued in discharge of a debt, as merely admitting the signature imposes the burden of proof under Section 139 of the NI Act.
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