The presumption of liability under Section 138 does not diminish due to handwriting disputes if the signature is admitted, necessitating consideration of additional forensic evidence.

ORDER :

P.V.KUNHIKRISHNAN, J.

This revision is filed against the conviction and sentence imposed on the revision petitioner as per the judgment dated 31.12.2021 in ST 276/2014 on the file of the Chief Judicial Magistrate Court, Pathanamthitta. It was a prosecution initiated by the 1^st respondent against the petitioner alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘N.I.Act’) (hereinafter the revision petitioner and the 1^st respondent are mentioned as accused and complainant respectively).

2. The case of the complainant is that the accused borrowed an amount of Rs.3,00,000/- (Rupees Three lakhs) from him and issued a cheque bearing No.472046 dated 20.12.2013 drawn on the State Bank of Travancore, Malayalappuzha Branch for discharging her legally enforceable debt towards the complainant. When the complainant presented the cheque for encashment through his bank, it was returned dishonoured stating the reason “Funds InsufÏcient” in the account of the accused. Hence, the complainant sent registered notice to the accused intimating the dishonour of the cheque and demanding her to repay the cheque amount. The notice was served on 29.01.2014, to which the accused sent a reply notice denying the transaction. The accused raised false contentions and failed to repay the amount borrowed and hence committed the offence punishable under Section 138 of the N.I.Act is the submission.

3. To substantiate the case, the complainant himself was examined as PW1. Exts.P1 to P6 were marked on the side of the complainant. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 138 of the N.I.Act and sentenced to undergo simple imprisonment for three months and also directed to pay compensation of Rs.4,00,000/- (Rupees Four Lakh only) to the complainant under Section 357(3) Cr.P.C. In default of payment of compensation, the accused was directed to undergo simple imprisonment of three months.

4. Aggrieved by the conviction and sentence, the accused filed an appeal before the Additional Sessions Judge-II, Pathanamthitta. The Sessions Court, after going through the evidence and documents, confirmed the conviction, but modified the sentence to till rising of the court and also directed the accused to pay compensation of Rs.4,00,000/- to the complainant under Section 357(3) Cr.P.C. The accused was directed to undergo simple imprisonment for three months in default of payment of compensation. Aggrieved by the same, this revision is filed.

5. A short point is raised by the learned counsel for the accused. The accused disputed the writings in the cheque. Therefore, the same was sent for expert opinion. Annexure A1 produced along with the revision is the examination report submitted by the State Forensic Science Laboratory, Police Department, Government of Kerala. The same is in favour of the accused, but the same was not marked before the trial court, is the submission.

6. The learned counsel appearing for the complainant submitted that even if the writings in the cheque are not that of the accused, if the signature is admitted, there is a presumption in favour of the complainant.

7. This Court considered the contentions of the accused and the learned counsel for the complainant. This Court perused the evidence adduced by the parties also. It is better to extract the relevant portion of the cross examination of PW1, which reads thus :

From the above, the complainant has got a case that the writings in the cheque are by the accused herself. But, the result of the examination of the State Forensic Science Laboratory as evident by Annexure A1 reads like this :-

“The person who wrote the blue enclosed standa