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IN THE HIGH COURT OF KARNATAKA, BENGALURU
K.N. PHANEENDRA, J.
SMT. NASREEN PASHA – Petitioner
Vs.
SRI MALIK AHMED – Respondent
CRIMINAL REVISION PETITION NO.52/2016
Decided on : 05-08-2016
NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138: [K. N. Phaneendra, J] Dishonour of cheque - Verification of signature on cheque by Court - On positive denial by signatory of cheque and where signature on disputed document is vague making it difficult to compare, Court shall not decide matter solely on comparing documents by itself - In case Court constrained to take up such comparison, thorough study to be made and findings needed to be recorded for reaching its conclusion - Though opinion of expert is not binding on Court, Court itself cannot take up role of handwriting experts to compare signatures as per Section 73, except as last resort.
NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138: [K. N. Phaneendra, J] Dishonour of cheque - Verification of signature - Findings recorded by subordinate Court without considering differences between admitted and disputed signature only by casual glancing - Verification of signatures needed to be done by ascertaining characteristics of signature that differentiate both admitted and disputed signature - On careful scrutiny only inference can be drawn by Court in absence of expert opinion - Findings recorded by subordinate Court is not sustainable.
NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138: [K. N. Phaneendra, J] Dishonour of cheque - Accused placed sufficient evidence on record to doubt signature on cheque - Such doubt has been expressed throughout proceedings by accused and proper action by filing complaint also taken by accused at his risk - Lower courts ought to have appreciated material on record and called for expert opinion on same under Section 45 - Denial for calling in expert opinion violated principles of natural justice as accused was not given fullest opportunity to defend himself - Conviction of accused, was set aside.
Key Points:- The court allowed the accused's application to refer the disputed signature on Ex.P1(a) to a forensic expert for examination and report, directing the trial court to send the disputed signature with admitted signatures for examination. (!) (!) - The judgment emphasizes that the opinion of an expert is a relevant fact but not binding; the court may rely on its own comparison of signatures under Section 73 as a last resort and must provide full reasons when doing so. (!) (!) (!) - Denial of the accused’s request under Section 45 of the Indian Evidence Act to obtain handwriting expert opinion was deemed a violation of natural justice; the accused must be afforded fullest opportunity to defend, and courts should generally grant such requests unless delaying tactics or conclusiveness of signature is evident. (!) (!) (!) - The decision recognizes that a court should not ordinarily act as a handwriting expert and must carefully document similarities/differences when comparing signatures without expert opinion. (!) (!) - The trial and appellate courts’ failure to consider expert referral requests and to provide opportunity for defence led to setting aside convictions and remanding for fresh disposal with expert examination. (!) (!) - The court outlines that fair trial requires genuine opportunity to prove defence, including allowing requests for expert examination of signatures; otherwise, risk of unfair trial. (!) (!) - The matter involves cheque for Rs.1,50,000 issued as part of a financial dispute; service of notice and validity of proceedings under Section 138 of the Negotiable Instruments Act are discussed in evaluating the conviction. (!) (!) - The court reiterates that where there is a positive denial of signature and doubts about genuineness, courts should consider expert opinion but must record careful, reasoned findings if proceeding without it. (!) (!) (!) - The appellate court’s refusal to refer for expert opinion is criticized when the accused has placed sufficient materials to doubt the signature. (!) - The order directs procedural steps to avoid delay and to facilitate early disposal, including requirements for appearance and handling of Ex.P1 in investigation. (!) (!) (!)
The Revision Petitioner has preferred this Revision Petition seeking to set aside the judgment passed by the JMFC, Gubbi, in CC No.439/2008 dated 25.8.2012, which is affirmed in Criminal Appeal No.124/2012 dated 20.11.2015 passed by the VI Addl. Dist. & Sessions Judge, Tumkur, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and imposed sentence of Simple imprisonment for six months and also fine of Rs.1,60,000/- with a default clause to undergo Simple imprisonment for a period of one month and also awarding an amount of Rs.1,50,000/-as compensation payable to the complainant out of the fine amount.
2. The petitioner being the accused has taken up the ground that, the trial Court as well as the first appellate court have not taken into consideration the evidence led by the parties in their proper perspective. The trial Court has committed serious error in not appreciating the evidence and failed to hold that the complainant has failed to prove the ingredients of Section 138 of the Negotiable Instruments Act, 1881. It is contended that the accused throughout has denied the non-service of notice as required to be served u/s.138 of the Negotiable Instruments Act, 1881. Secondly he has taken up a specific contention that the signature found on the cheque produced by the complainant under Ex.P1 is not that of the accused. It is further contended that, the petitioner has filed an application u/s.45 of the Indian Evidence Act, before the first appellate court requesting to refer the said cheque for handwriting expert’s opinion. But the first appellate court has refused to consider the said application and erroneously rejected the same. The trial Court and the first appellate court have taken the place of the expert and they compared the signatures in the cheque with other admitted signatures of the accused in the vakalath and statement of the accused recorded u/s.313 of Cr.PC and came to the conclusion that the complainant has proved his case particularly the signature at Ex.P1(a) as that of the accused. The said finding is against to the principles of natural justice, as no opportunity has been granted to the accused to prove his defence. Both the courts have wrongly held that the accused has not taken any steps to prove the defence taken up by her. Therefore, for all these reasons, the petitioner’s counsel would argue before this Court in support of the said contentions and submitted that the Revision Petition deserves to be allowed and accused/petitioner is entitled to be acquitted and therefore, he requested the court to set aside the judgment passed by the trial Court and as affirmed by the first appellate court. Alternatively he also argued that, application filed by the petitioner u/s.45 of the Indian Evidence Act before the appellate court may be allowed and matter may be remitted to the trial Court for fresh disposal, with appropriate directions.
3. Per contra, the learned Counsel appearing for the respondent-complainant strenuously contended that, the complainant has established the case not only by narrating the factual aspects in the complaint but also proving the same by producing cogent and convincing evidence before the court. There are lapses on the part of the accused, as she has not made any such application u/s.45 of the Indian Evidence Act before the trial Court nor she has placed any material to show that the said signature is not that of the accused. The evidence of the complainant and PW2 who is the Bank Manager amplifies and probabalises that, the said signature at Ex.P1(a) belongs to the accused. Therefore, the trial Court as well as the first appellate court have not committed any error in appreciating the evidence on record. The notice issued to the accused was also deemed to have been served on the accused. Hence, the trial Court has properly appreciated this aspect. Therefore, there is no ground made out before this Court to interfere with the judgment of convicti
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