IMPORTANT POINTS
A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Section 20, Section 87 and Section 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer.

ORDER :

1. The petitioner is the accused in the case C.C No. 953/2017 on the file of the Court of the Judicial First Class Magistrate (N.I Act Cases), Ernakulam.

2. The aforesaid case is instituted upon the complaint filed by the second respondent against the petitioner for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

3. When the case reached the stage of defence evidence, the petitioner filed an application as Crl.M.P No. 10420/2018 in the trial court for sending the cheque to the Forensic Science Laboratory, Thiruvananthapuram to obtain opinion regarding the handwriting of the entries in the cheque.

4. The second respondent filed objection to the aforesaid application contending that the intention of the petitioner was only to protract the case and to cause delay in the disposal of the case.

5. As per Annexure-A order, the learned Magistrate dismissed the application filed by the petitioner for sending the cheque for the opinion of the expert. The legality and the propriety of the aforesaid order are challenged in this petition filed under Section 482 Cr.P.C.

6. Heard the learned counsel for the petitioner and also the first respondent.

7. The petitioner/accused has no case that the cheque involved in the case does not bear her signature. The dispute is only with regard to the other entries in the cheque.

8. Annexure-B is the copy of the deposition of the complainant in the case. It shows that, on cross-examination by the petitioner/accused, the complainant had given evidence as follows:

“Accused came to my place and gave the cheque. She was accompanied by a person, might be her husband or her employee. He wrote the entries in the cheque. Accused suggests that neither the accused nor her husband nor her agent wrote anything in Ext.P4 (Q) Incorrect (A).”

9. On a bare perusal of the aforesaid statement made by the complainant in the trial court it can be found that the complainant has got no case that the accused herself wrote the entries in the cheque.

10. The petitioner/accused has also no case that she had filled up the cheque in her own handwriting.

11. When, neither the complainant nor the accused, has got a plea that the accused herself made the entries in the cheque, it eludes comprehension why the cheque should be sent for obtaining an opinion of the expert with regard to the handwriting of the entries in it.

12. In Bir Singh v. Mukesh Kumar: AIR 2019 SC 2446, the Apex Court has held as follows:

“A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Section 20, Section 87 and Section 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. ..... Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. ..... In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be