The court's reliance on the handwriting expert's report and comparison of signatures to determine the authenticity of the cheque in a case under Section 138 of the Negotiable Instruments Act.

Vipin Sanghi, J. (Open Court):--

1. The applicant has moved this application under Section 378(4) Cr PC for grant of leave/permission to file criminal appeal against the judgment and order dated 20.09.2014 passed by Sh. Anurag Thakur, MM, Dwarka Court in Case No. 392/2012 (Old CC No. 23524/11 dated 08.03.2011 under Section 138 of Negotiable Instruments Act). By the impugned order, the complaint preferred by the applicant has been rejected and the respondent/accused was acquitted.

2. The case of the complainant was that it is a Chit Fund company and that the accused was a member of the chit bearing No. JCH VI having total value of 2 lacs, of 25 instalments. It was alleged that the accused had only paid 9 instalments and 16 instalments were due. In discharge of her liability, the accused issued the cheque in question for Rs. 2,11,761/- dated 21.09.2010, which, on presentation for payment was returned unpaid by the payee bank vide return memo dated 07.01.2011 for the reason “Funds Insufficient”. Despite service of notice dated 03.02.2011, the accused failed to make payment towards the cheque in question within the statutory period and, accordingly, the complaint had been preferred. Upon being summoned, the accused entered appearance. Notice under Section 251 Cr PC was framed on 02.03.2012. The parties led their respective evidence.

3. The learned MM framed the following issues for his consideration:

(i) Whether the cheque in question was issued by the accused?

(ii) Whether the accused had any liability towards the complainant?

(iii) Whether legal notice was duly served upon the accused?

(iv) Whether the complaint is bad in law being filed by an unauthorised person?

4. Issue Nos. 2, 3 and 4 were decided in favour of the complainant. However, on the first issue, the finding returned is that the cheque in question had not been issued by the accused. Consequently, the complaint has been rejected. The learned MM observed that in answer to the question put to her at the time of framing of notice under Section 251 Cr PC, the accused had denied her signature on the cheque in question. Even in her statement under Section 313 Cr PC, the accused had stated that she had never issued the cheque in question nor had she signed anywhere on the cheque (Exh PW-1/1). The accused moved an application for referring the cheque in question for opinion of the handwriting expert. The said application was allowed vide order dated 03.01.2014 and the document was referred to the FSL.

5. The report of the FSL dated 06.06.2014 was received. The Asst. Director (Documents) FSL, Delhi found that “The person who wrote the blue enclosed signatures stamped and marked A1 to A3 did not write the red enclosed signatures similarly stamped and marked Q1 and Q2”. The report stated that the divergences between the admitted signatures and the disputed signatures are fundamental in nature, and are beyond the range of natural variations and intended disguise and when considered collectively, lead to the aforesaid opinion. The learned MM admitted in evidence the said report by dispensing with the examination of Asst. Director (Documents), FSL, Delhi. The complainant did not dispute the findings of the FSL regarding the signatures. No application was moved by the complainant to cross examine the author of the report, or to contradict the finding of the report by examining an independent handwriting expert.

6. The learned MM was conscious of the fact that the opinion of the handwriting expert was not binding in nature, and that the Court could disregard the same if there are sufficient reasons to do so, since an expert witness and his opinion are only meant for assistance of the Court. The learned MM observed that on a careful examination of the disputed signatures and the admitted signatures, it appears that they have been made in two different styles and there are many variations in them which are visible even to the naked eye. Consequently, the learned MM held that the repor