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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Sant Parkash, J.
Rajni Dhingra - Appellant
Versus
Sanjeev Chugh - Respondent
Criminal Miscellaneous No.M-45791 of 2019
Decided On : 12-01-2022
Handwriting Expert - Negotiable Instruments Act - Section 138 - Indian Evidence Act, 1872 - [Section 138 of Negotiable Instruments Act, 1881, Section 45 of Indian Evidence Act, 1872] - The court discussed the petitioner's application to examine a handwriting expert in defense of the complaint case under Section 138 of the Negotiable Instruments Act. The court referred to the settled law that every possible assistance should be offered by the court when an accused in a complaint case seeks directions to refer a disputed cheque for the opinion of a handwriting expert. However, the court found that the petitioner had admitted his signature on the cheque and that there was no ground to send the cheque for forensic examination. The court held that the defense of the accused regarding the misuse of the cheque and the absence of liability are matters of evidence to be proved by the accused, and therefore dismissed the petition.
Fact of the Case:
The petitioner, accused in a complaint case under Section 138 of the Negotiable Instruments Act, sought to examine a handwriting expert in her defense. The trial court dismissed the application, leading to the present petition.
Finding of the Court:
The court found that the petitioner had admitted his signature on the cheque and that there was no ground to send the cheque for forensic examination. The defense of the accused regarding the misuse of the cheque and the absence of liability are matters of evidence to be proved by the accused.
Issues: The issues revolved around the petitioner's application to examine a handwriting expert in defense of the complaint case under Section 138 of the Negotiable Instruments Act.
Ratio Decidendi: The court held that every possible assistance should be offered by the court when an accused in a complaint case seeks directions to refer a disputed cheque for the opinion of a handwriting expert. However, the defense of the accused regarding the misuse of the cheque and the absence of liability are matters of evidence to be proved by the accused.
Final Decision: The court dismissed the petition, upholding the trial court's decision to dismiss the petitioner's application to examine a handwriting expert in defense of the complaint case under Section 138 of the Negotiable Instruments Act.
JUDGMENT
Sant Parkash, J. - Through the present petition, petitioners has prayed for quashing order dated 04.09.2019 (Annexure P-4) passed by the Judicial Magistrate 1st Class, Gurugram, whereby an application filed by him for examining handwriting expert in complaint No.CIS 4735/2017 dated 05.04.2017 under Section 138 of Negotiable Instruments Act, 1881 has been dismissed.
2. The petitioner is accused in aforesaid complaint case pending in the court of Judicial Magistrate 1st Class, Gurugram. Petitioner and one Mrs. Ekta Dhingra lend Rs. 1,50,00,000/- and 2,00,00,000/- for investment purposes, from the respondent - complainant and promised to repay the amount installments alongwith interest @ 24% per annum. Complainant advanced the amount of? 1,50,00,000 to the petitioner in five instalments vide five cheques in the month of February 2014 which werecredited to the bank account of petitioner. Petitioner paid interest @ 24% only till 31.03.2014. The petitioner requested the complainant to receive part payment of Rs. 50 lac and for that purpose, petitioner gave two cheques favouring the complainant, bearing Nos.000049 dated 07.06.2014 and 000007 dated 07.08.2014 for Rs. 25 lac each, drawing on Andhra Bank, Greater Kailash, New Delhi, which were honoured and credited to the bank account of complainant. Complainant alleged that petitioner paid interest only at the rate of 15% per annum till March 31, 2016 and paid 5 lac vide RTGS on August 05, 2016 towards part payment of interest till June 2016 whereafter he stopped paying interest altogether. Complainant insisted the petitioner for repayment whereupon, petitioner gave two cheques favouring the complainant bearing Nos.000032 and 000033 dated 06.02.2017 for Rs. 50 lac each, drawn on Andhra Bank, Greater Kailash, New Delhi, however, on presentation in the bank, they had been dishonoured and returned unpaid by the bank with the remarks 'Payment Stopped by the Drawer'. Complainant served legal notice upon the petitioner. Despite receipt of legal notice, petitioner did not pay any amount to the complainant despite expiry of a period of more than 15 days from the date of receipt of said legal notice and hence, complaint under Section 138 of the Negotiable Instruments Act was filed. After closure of evidence of complainant, statement of petitioner was recorded under Section 313 Cr.P.C. and the case was posted for leading defence evidence.
3. The petitioner had filed two applications viz. one under Section 315 Cr.P.C. and the other under Section 45 of Indian Evidence Act, 1872 to examine and summon the handwriting expert in her defence. Though application under Section 315 Cr.P.C. was allowed by the trial courtbut application for summoning/examining handwriting expert was dismissed vide the impugned order which has been challenged through the present petition.
4. Learned counsel for the petitioner has submitted that in order to disprove the charges against her, she wanted to examine handwriting expert. Petitioner had only signed a blank cheque wherein the amount and date was filled by the complainant. The trial court has erred in dismissing her application. Learned counsel has contended that fair trial includes a fair and proper opportunity allowed by law to prove the innocence of the accused. The trial court should have sent the cheque for examination and opinion of the handwriting expert. By denying the said document(s) for examination, the trial court has deprived the petitioner of an opportunity of rebutting it. Lastly, while referring to judgment of the Supreme Court in Katyani Baskar (Mrs.) versus M.S.Sampoornam (Mrs.), (2007) 2 Supreme Court Cases 258, learned counsel has submitted that the Magistrate ought to have taken appropriate steps for obtaining the report of the handwriting expert on the point whether the signature on the cheque is that of the accused and should have proceeded with the trial of the case in accordance with law. Thus, it is a settled law that every possible assi
The defense of the accused regarding the misuse of the cheque and the absence of liability are matters of evidence to be proved by the accused.
The report of handwriting experts is not binding upon the courts, and if the complainant did not lead evidence to seek examination of a handwriting expert when the accused had denied his signatures o....
Once the signatures on a cheque are admitted, the handwriting on the cheque itself would not be a sufficient ground to rule against the cheque having been issued in due course.
The accused should be granted an opportunity to adduce evidence in rebuttal if a contention is raised that the complainant misused the cheque.
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 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....
Accused must be allowed to present expert evidence when claiming misuse of a cheque to ensure a fair trial.
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