IMPORTANT POINT
Accused must be allowed to present expert evidence when claiming misuse of a cheque to ensure a fair trial.

JUDGMENT :

(Harkesh Manuja, J.)

By way of present petition filed under Section 482 Cr.P.C., prayer has been made for quashing/setting aside of impugned order dated 18.03.2024 passed by the Judicial Magistrate Ist Class, Kaithal, whereby an application filed at the instance of the petitioners seeking permission to examine handwriting expert for the purpose of comparison of the writing on the body of cheque with the signatures of petitioner No.2 thereupon was declined.

2. Having been arrayed as an accused in Complaint No.NACT/96/19 under Section 138 of the Negotiable Instruments Act filed at the instance of respondent/complainant, petitioner No.2 was summoned and was facing trial. While defence evidence was going on, petitioners moved an application for seeking permission to lead evidence by examining handwriting expert so as to compare the writing on the body of cheque with his signatures thereupon. The aforesaid application was opposed at the instance of respondent/complainant. The Trial Court vide order dated 18.03.2024 dismissed the prayer of the petitioners.

3. Impugning the aforesaid, learned counsel for the petitioners while placing reliance upon decision dated 13.06.2022 passed in CRM-M No.45064 of 2019 titled ‘Rajesh Rana vs. Parmod Kumar’ submits that once the plea of misuse of cheque was raised by the accused, he should have been afforded opportunity to prove the same through handwriting expert and, thus, the application moved at the instance of the petitioners/accused was required to be allowed.

4. On the other hand, the prayer made on behalf of the petitioners has been vehemently opposed at the instance of learned counsel representing the respondent/complainant while submitting that the purpose of filing of application at the instance of petitioners/accused was merely to delay the proceedings before the Trial Court. He also points out that once the signatures over the cheque in question were never disputed by the petitioner No.2, the factum of filling up of cheque with some different hand had no material relevance, hence the impugned order warrants no interference.

5. I have heard learned counsel for the parties and gone through the paper book. I find substance in the submissions made on behalf of the petitioners.

6. In the present case, once a defence has been set up by the petitioners/accused that the cheque in question was misused at the instance of respondent/complainant, the same having been filled up with different hand in the given facts and circumstances, it was essential to get the same compared with the signature of the petitioners through handwriting expert so as to bring the truth on record. In this regard, the aforesaid view finds supports from the observations made by this Court in Rajesh Rana’s case (supra). Relevant paragraph no.13 thereof is reproduced hereunder:-

“A perusal of the judgments in T. Nagappa’s case etc. (supra), would clearly establish that when a contention is raised that the complainant has misused the cheque by filling up the body of the same, even in a case, where a presumption can be raised under Section 118(a) or 139 of the Negotiable Instruments Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places burden on the accused, he must be given an opportunity to discharge it.

The complainant will invariably not disclose that the body of the cheque has been filled up by him or at his instance even where the signatures on the cheque has been accepted by the accused. Without doubt, the holder of the cheque has the authority to fill the same and the cheque would be a valid instrument but to start with, the first step available with an accused to rebut the presumption that the cheque had been issued for the discharge of a legally enforceable debt is by examining a handwriting expert to testify that the signatory and the author of the body of the cheque are different persons. Even if the difference in writing is established, the accus