IMPORTANT POINT
Dishonour of cheque – Examination of disputed cheque by Forensic Science Laboratory is not necessary where accused has admitted his signature in cheque.

JUDGMENT

The petitioner, the complainant in C.C No.864 of 2015 on the file of the Judicial First Class Magistrate Court, Njarakkal challenges the order dated 20.10.2021 in CMP No.880 of 2016. The petitioner filed a complaint alleging offence under Section 138 of the Negotiable Instruments Act against the party respondent/accused before the Trial Court. The court took cognizance of the offence. The accused appeared on summons. He pleaded not guilty to the particulars of offence read over to him. The Court proceeded with the trial. The complainant was examined as PW1. He gave evidence that the accused filled up the cheque in his presence.

2. The accused contended that he has not filled up the cheque, but admitted the signature. The accused then filed the above referred CMP requesting to send the cheque and his admitted writings for comparison by experts in the Forensic Science Laboratory. The learned Magistrate allowed the application. This order is under challenge.

3. The learned counsel for the petitioner/complainant submitted that as the accused admitted the signature in the cheque, there is no requirement to send the cheque for comparison as when a drawer signs a cheque and hands it over to the payee, he is presumed to be liable unless he adduces evidence to rebut the presumption that the cheque has been issued towards a payment of debt or in discharge of a liability.

4. The learned counsel for the party respondent/accused submitted that the examination of the disputed cheque by the Forensic Science Laboratory with the admitted writings of the accused would reveal the fact that the cheque was not drawn by the accused.

5. The learned counsel for the petitioner relied on the judgment of the Apex Court in Oriental Bank of Commerce v. Prabodh Kumar Tewari [2022 (5) KHC 560 (SC)] in support of his contentions.

6. The submission of the learned counsel for the petitioner is that the attempt of the party respondent/accused is to protract the matter as it may take years to get a report from the Forensic Science Laboratory in view of the pendency of matters in the laboratory and the lack of facilities available as of now.

7. The case of the petitioner is that the accused executed a cheque for a sum of Rs. 2,00,000/-. He presented the cheque for encashment which was dishonoured due to the insufficiency of funds in the account. A statutory notice was issued which the accused received, but he did not send any reply. In the statement under Section 313 Cr.P.C, the accused admitted that he had given a signed blank cheque to the complainant. In Oriental Bank of Commerce (supra), the Supreme Court considered the challenge of an order directing to send the disputed cheque to the Forensic Science Laboratory for expert examination wherein the drawer/accused admitted the signature of the cheque. The Supreme Court held that a drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability.

8. The fact that the details in the cheque have been filled up not by the drawer but by some other person would be immaterial and which is not relevant to the question whether the cheque was issued towards payment of a debt or in discharge of a liability.

9. In Kalyani Bhaskar v. M.S. Sampooranam [2007(2) SCC 258], the Supreme Court held that adducing evidence in support of the defence is a valuable right and denial of that right would mean denial of a fair trial. In that case, the Apex Court allowed the application filed by the accused for sending the cheque for opinion of the handwriting expert holding that the Magistrate should have granted such a request unless he thinks that the object of the accused is vexation or delaying the criminal proceedings. Kalyani Bhaskar is an authority for the proposition that if the intention of the accused is to protract the proceedings, the request for sending