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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA, J.
Tilak Raj - Petitioner
Versus
Dharam Singh - Respondent
Cr. MMO No. 331 of 2023
Decided On : 09-01-2024
Handwriting Comparison - Dismissal of Application under Section 243 Cr.P.C. and Section 73 of Indian Evidence Act - [Section 243 Cr.P.C., Section 73 of Indian Evidence Act] - The court discussed the presumption under Section 139 of the NI Act, the relevance of handwriting expert opinion, and the admissibility of evidence to contradict a witness under Section 153 of the Indian Evidence Act. The court emphasized that once the signatures are admitted, the filling of the body of the cheque by another person is immaterial, and no useful purpose would be served by comparing the handwriting. The judgment highlighted the accused's right to lead relevant evidence in defense.
Fact of the Case:
The accused filed a petition to compare the handwriting on a cheque, which was dismissed by the Trial Court. The accused sought to establish that the cheque was not filled by him, but the Trial Court held that the signatures were not disputed and the filling of the cheque by another person was immaterial.
Finding of the Court:
The court found that the accused's petition to compare handwriting was irrelevant as the signatures were admitted, and the filling of the cheque by another person would not affect the accused's liability. The court emphasized the accused's right to lead relevant evidence in defense.
Issues: The issues revolved around the admissibility of handwriting comparison evidence, the relevance of the accused's right to lead defense evidence, and the interpretation of Section 139 of the NI Act and Section 153 of the Indian Evidence Act.
Ratio Decidendi: The court held that once the signatures are admitted, the filling of the body of the cheque by another person is immaterial, and no useful purpose would be served by comparing the handwriting. The accused has a valuable right to lead relevant evidence in defense.
Final Decision: The petition was dismissed, and the parties were directed to appear before the Trial Court. The court's observation was confined to the disposal of the petition and would have no bearing on the merits of the case.
JUDGMENT :
Rakesh Kainthla, J.
The present petition has been filed for assailing the order dated 3.3.2023, passed by learned Judicial Magistrate First Class (JMFC), Thunag, District Mandi, H.P. vide which, the application filed under Section 243 Cr.P.C. read with Section 73 of Indian Evidence Act for comparing the handwriting of the particulars filled in the cheque was dismissed. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. The complainant has filed a complaint against the accused for the commission of an offence punishable under Section 138 of the NI Act. The complaint was listed for arguments on 3.3.2023 when the application was filed and was disposed of.
3. It was asserted in the application that the cheque was not written by the accused, the amount was also not mentioned by him. The cheque was issued by the accused and there is no legal liability against the accused. The complainant stated that the cheque was filled by the accused and the accused had issued bill No. 01204 to the complainant duly signed by him; however, the accused had not issued the cheque and the bill. It is necessary to examine the documents by a handwriting expert. Therefore, a prayer was made to send the documents for ascertaining the expert opinion.
4. No reply was filed and the application was opposed orally by submitting that the application was filed belatedly at the stage of addressing arguments.
5. The learned Trial Court held that the accused had not disputed his signatures on the cheque. He admitted that he had given the cheque as a security to the complainant. There is a presumption that the cheque was issued in discharge of legal liability and there is no requirement that the cheque should be filled by the drawer himself. The accused is liable even if the cheque is filled by some other person. The proof that the cheque was filled up by some other person will not serve any purpose. Hence, the application was dismissed with costs.
6. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed under Section 482 of Cr.P.C. asserting that the order dated 3.3.2023 passed by the learned Trial Court is against the spirit of Section 243 Cr.P.C. and Section 73 of Indian Evidence Act. Learned Trial Court erred in holding that the application was filed at a belated stage because the occasion for filing the application arose after the examination of the witnesses. The judgment relied upon by the learned Trial Court in Bir Singh Mukesh 2019 (4) SCC 197 does not apply to the present case. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
7. The petition is opposed by filing a reply making a preliminary submission regarding the petition having been filed to delay the proceedings. It was asserted that the application was filed after the recording of the statement and the closure of the defence evidence. The accused never disputed the signatures on the cheque in question. He also did not deny the business transactions with the complainant, consequent upon which, he issued certain bills to him. When the signatures are not disputed, a presumption arises that a cheque was issued in the discharge of the criminal liability. Even if it is proved that the cheque was not filled by the accused, it will not make any difference to liability of the accused to indemnify the complainant. The order passed by the learned JMFC, Thunag is based upon the correct interpretation of law and as per the various pronouncements of the Hon’ble Supreme Court and the High Courts. Therefore, it was prayed that the present petition be dismissed.
8. I have heard Mr. Rajiv Rai, learned Counsel for the petitioner/accused and Mr. Sunny Rawat, learned counsel for the respondent/complainant.
9. Mr. Rajiv Rai, learned counsel for the petitioner submitted that the learned Trial Court erred in dismissing
Once the signatures are admitted, the filling of the body of the cheque by another person is immaterial, and no useful purpose would be served by comparing the handwriting. The accused has a valuable....
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.
The accused should be granted an opportunity to adduce evidence in rebuttal if a contention is raised that the complainant misused the cheque.
The main legal point established in the judgment is the presumption of liability of the drawer of the cheques under Section 138 and 139 of the Negotiable Instruments Act, and the obligation on the ac....
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 ....
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