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IN THE HIGH COURT OF KARNATAKA
K. Natarajan, J.
P. Srinivasachari – Appellant
Versus
P. R. Mallikarjuna – Respondent
Criminal Petition No. 10613 of 2022
Decided On : 09-04-2023
EVIDENCE - HANDWRITING ANALYSIS - The court addressed the necessity of handwriting verification in a case involving a disputed cheque under the Negotiable Instruments Act. It emphasized the importance of allowing the accused to rebut the presumption of validity of the cheque by referring it to a handwriting expert, thereby ensuring a fair trial and proper examination of evidence.
Fact of the Case:
The petitioner-accused faced trial for issuing a dishonored cheque under Sec. 138 of the Negotiable Instruments Act. He claimed that his signature was obtained under duress by police, and sought to have the cheque examined by a handwriting expert to contest the complainant's assertions.
Finding of the Court:
The court found that the trial court's dismissal of the application for handwriting analysis was incorrect. It noted the necessity of verifying the handwriting to determine the authenticity of the cheque and to allow the accused to rebut the presumption under Sec. 139 of the Negotiable Instruments Act.
Issues: Whether the trial court erred in dismissing the application for referring the disputed cheque to a handwriting expert under Sec. 45 of the Indian Evidence Act.
Ratio Decidendi: The court held that the accused must be given the opportunity to challenge the presumption of the cheque's validity by allowing expert analysis of the handwriting, which is crucial for a fair adjudication of the case.
Final Decision: The criminal petition was allowed, the trial court's order was set aside, and the cheque was directed to be referred to a handwriting expert for verification.
JUDGMENT
1. This criminal petition is filed by the petitioner-accused under Sec. 482 of Cr.P.C. for setting aside the order of dismissal dtd. 28/10/2022 passed on the application filed under Sec. 45 of Indian Evidence Act by the XXI Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.1649/2021.
2. Heard the arguments of learned counsel appearing for the parties.
3. The case of the petitioner is that he is facing trial in C.C. No.1649/2021 pending on the file of the XXI Additional Chief Metropolitan Magistrate, Bengaluru, for the offence punishable under Sec. 138 of Negotiable Instruments Act, on the ground that he is said to have issued a cheque to the respondent for Rs.3.00 lakhs, which came to be dishonourd and a complaint came to be filed by the respondent. It is the further case of the petitioner that during cross examination, the petitioner stated that he was taken to Upparpet Police Station on 20/3/2020 and by threatening him, his signature was obtained by the police on Rs.100.00 blank e-stamp paper, on the cheque and the complainant filed the complaint. As per the very statement made by the complainant in his examination-inchief, the cheque was filled up by the accused and signed by him. The further case of the petitioner is that the cheque was not filled by him but signed by him on the pressure of the police in the police station, when he was taken to custody. Therefore, he filed an application for referring the cheque to FSL for verifying the hand writing on the cheque, which came to be dismissed. Hence, the petitioner is before this Court.
4. Having heard the learned counsel for the parties, perused the records, especially, the sworn statement made by the complainant before the trial Court at paragraphs 3 and 4, where the complainant has categorically stated that, on 1/6/2020, the accused himself filled the cheque and after signing the same, in his presence, it was given to complainant. The contention of the accused, in the cross examination, is that he was taken to police station, which was admitted by the complainant in the cross examination that the accused was taken to police station for enquiry. It is the case of the petitioner that the signature on the cheque was obtained by the police, by threat. Therefore, it is necessary for the petitioner to rebut presumption under Sec. 139 of Negotiable Instruments Act for referring the disputed cheque to FSL in order to know as to whether the handwriting on the cheque is that of the complainant or of the accused. Therefore, rejecting the application by the trial Court is not correct and the disputed cheque should be referred to FSL for verifying the handwriting on the cheque and for the opinion of the handwriting expert is necessary. Therefore, the application filed by the petitioneraccused under Sec. 45 of Indian Evidence Act, requires to be allowed.
5. Accordingly, the criminal petition is allowed. The order of the trial Court dtd. 28/10/2022 dismissing the application filed under Sec. 45 of Indian Evidence Act, is set aside and the said application is allowed.
* Corrected vide Court order dtd. 16/6/2023.
*as to whether the handwriting including the date on the cheque is of the accused or not.
The court emphasized the importance of expert evidence in resolving disputes regarding the authenticity of disputed documents, especially in cases involving negotiable instruments.
The accused should be granted an opportunity to adduce evidence in rebuttal if a contention is raised that the complainant misused the cheque.
The authority of the holder in due course to complete stamped instruments and the lack of a mandate for the drawer to fill up the entire instrument by himself.
An accused has the right to present evidence to challenge the validity of a cheque, particularly when allegations of misuse are made.
The main legal point established in the judgment is the presumption of liability of the drawer of the cheques under Section 138 and 139 of the Negotiable Instruments Act, and the obligation on the ac....
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 consistent stand of the accused and the relevance of insufficient funds in dishonoring the cheque were crucial in reaching the decision.
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