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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN MONGA, J.
Hansraj S/o Amraram – Appellant
Versus
State Of Rajasthan, Through PP – Respondent
S.B. Criminal Misc(Pet.) No. 3923 of 2024
Decided on : 02-07-2024
EVIDENCE - HANDWRITING EXPERT OPINION - The court addressed the application for a handwriting expert's opinion under Section 45 of the Indian Evidence Act and Section 293 of the Cr.P.C. The court emphasized the legal presumption in favor of the holder of a cheque, which can be rebutted by the accused. The court allowed the petitioner to obtain expert evidence to support his claims of forgery, thereby quashing the previous orders that denied this opportunity.
Fact of the Case:
The petitioner challenged the rejection of his application for a handwriting expert's opinion in a criminal complaint for dishonor of a cheque under Section 138 of the N.I. Act. The petitioner claimed he did not issue the cheque and that it was forged.
Finding of the Court:
The court found that while there is a presumption that a cheque is issued in discharge of a debt, the petitioner denied both the loan and the issuance of the cheque, asserting forgery. The court ruled that the petitioner should be allowed to present expert evidence to support his defense.
Issues: Whether the petitioner is entitled to a handwriting expert's opinion to challenge the presumption of the cheque being issued in discharge of a debt.
Ratio Decidendi: The court held that the burden of proof lies with the petitioner to substantiate his claims of forgery and that he should be given an opportunity to present expert evidence to support his defense.
Final Decision: The court allowed the petition, quashed the orders of the trial and revisional courts, and directed that the petitioner be permitted to obtain a handwriting expert's opinion at his own expense.
ORDER :
ARUN MONGA, J.
1. Aggrieved against the revision court order dated 05.04.2024 passed by learned Additional Sessions Judge, Sujangarh, District Churu, upholding an order dated 20.12.2023, passed by learned Judicial Magistrate, Bidasar, District Churu in Criminal Complaint case No.88/2021, whereby application preferred by petitioner seeking hand writing expert’s opinion under Section 45 of Indian Evidence Act read with Section 293 Cr.P.C. was rejected.
2. Respondent No.2/complainant has filed a criminal complaint against petitioner for dishonor of a cheque under Section 138 of N.I. Act stating that the cheque was issued by petitioner in discharge of a loan liability.
3. The petitioner submitted an application seeking expert opinion on the cheque signature and amount entry/hand writing thereof. Petitioner states that he neither took loan from respondent firm nor helped anyone to get loan from the respondent firm nor issued any cheque to the complainant firm. The petitioner states that respondent firm conspired with a person named Shyam Sundar to forge the cheque in question.
3.1 It is submitted by the petitioner that he never gave cheque in question to respondent firm in lieu of any debt, therefore to examine the truthfulness of the case, cheque in question was required to be sent for Forensic report. He is ready to bear all the expenses for the needful.
3.2. However, the learned Trial Court rejected the application of the petitioner leading to the instant petition.
4. Heard.
5. Ordinarily, once a cheque has been issued and its signature admitted, there is a legal presumption that it was given in discharge of a legally enforceable debt. This presumption, while rebuttable, generally stands strong in favor of the holder of cheque. However, in this case, the petitioner denies both the loan and the issuance of the cheque, further claiming that the signatures are not his and have been forged. The burden of proof lies with the petitioner (accused) to substantiate these claims. Therefore, the petition is disposed of with a directive that the trial court shall grant the petitioner one effective opportunity, at his own expense, to have the cheque examined by a handwriting expert.
6. The petitioner shall thus be permitted to introduce the expert opinion as evidence and also examine the expert as his defense witness, with the complainant having the right to accept or challenge the opinion as per the law. The trial shall then proceed further in accordance with law. The application Section 45 of Indian Evidence Act read with Section 293 Cr.P.C. filed by the petitioner before the learned trial court is thus allowed in above terms. Resultantly, impugned orders passed by the learned trial and the revisional court, ibid, are quashed.
7. Petition is disposed of accordingly. Pending application, if any, shall also stand disposed of.
AI
The court established that a defendant in a cheque dishonor case can seek expert evidence to rebut the presumption of issuance in discharge of a debt, particularly when claiming forgery.
A cheque's validity remains intact despite entries by a third party unless proof shows lack of intention by the drawer regarding those entries.
A party's right to a fair trial includes the ability to challenge evidence through proper legal procedures, particularly concerning disputed signatures in cheque dishonour cases.
The liability of the drawer of a cheque and the presumption in favor of the holder under Section 139 of the Negotiable Instruments Act.
An accused has the right to present evidence to challenge the validity of a cheque, particularly when allegations of misuse are made.
The central legal point established in the judgment is the accused's right to a fair trial, entitlement to lead evidence to prove innocence, and the provisions of Section 243 of the Code of Criminal ....
Accused must prove that a signed cheque was not issued in discharge of a debt, as merely admitting the signature imposes the burden of proof under Section 139 of the NI Act.
The accused has the right to rebut the presumption of a legally enforceable debt and must be granted an opportunity to adduce evidence in rebuttal, including the examination of a handwriting expert.
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