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.

JUDGMENT :

Suvir Sehgal, J.

Instant revision petition has been filed by the accused-petitioner impugning order dated 27.02.2020, Annexure P1, passed by learned Judicial Magistrate, Narnaul, whereby application filed by him for examination of a handwriting and fingerprint expert as a witness and for taking the specimen signature of the accused for comparison, has been rejected by the Trial Court.

2. Factual position is not in dispute. A complaint dated 21.01.2013, Annexure P7, has been instituted by the complainant-respondent under Section 138 of the Negotiable Instruments Act, 1881 (for brevity "NI Act") alleging that he is running Munim Milk Diary, Dolhera and after collecting milk from adjacent villages, he used to supply it to the petitioner, who had installed a Chilling Plant. Petitioner was irregular in making payment and issued a cheque of Rs.8 lacs on 10.11.2012 drawn on HDFC Bank, Meham Chowk, Bhiwani for towards payment of the balance amount due. However, on presentation, the cheque was returned with the remark "insufficient funds". After preliminary evidence, petitioner was summoned and served with a notice of accusation. He pleaded innocence and claimed trial. On conclusion of after charge evidence, statement of the accused was recorded under Section 313 Cr.P.C. on 05.02.2020, Annexure P5 in which he admitted the signature on the cheque, though he denied any transaction with the respondent and alleged that the respondent had misused the cheque. Petitioner filed an application dated 07.02.2020, Annexure P4, under Section 315 Cr.P.C., which has been allowed and he was permitted to lead defence evidence. Application dated 20.02.2020, Annexure P2, filed by him, for examination of a fingerprint and handwriting expert, has been opposed by the respondent by filing a response, Annexure P3, and after contest, has been rejected by the Trial Court vide order impugned herein.

3. Counsel for the petitioner has urged that petitioner had given a blank signed cheque to the respondent's son, who was supplying milk, as security, but the cheque has been misused by the respondent. He asserts that the petitioner did not fill the body of the cheque and in order to establish this fact, he wants an expert to examine the cheque and has sought permission for giving his specimen writing for comparison. Reliance has been placed by him upon the judgment of Supreme Court in T. Nagappa Versus Y.R. Muralidhar , AIR 2008 SC 2010 and judgments of this Court in Krishna Devi Shukla Versus K.S. Oil Limited , 2023 (1) CRI.CC 691; M/s.P.L. Forging Private Limited and another Versus M/s.Bhushan Power and Steel Limited , 2019 (1) NIJ 770; Puneet Kumar Versus Amandeep Singh 2018 (4) Law Herald 3416 and judgment of the Gujarat High Court in Abdul Rauf Abdul Rashid Shaikh Versus Shaikh Nuruddin Sarafuddin and another , 2018 (1) Guj. LH 617 to contend that as burden is on the accused to establish his innocence, a fair opportunity must be granted to him for adducing evidence in rebuttal.

4. Opposing the petition, counsel for the respondent has urged that the signature on the cheque have been admitted by the petitioner, therefore, there is no occasion for summoning an expert for the comparison of the writing on the cheque. He has placed reliance upon the judgment of the Supreme Court in Oriental Bank of Commerce Versus Prabodh Kumar Tewari , 2022 SCC Online 1089, judgments of this Court in Gurmeet Singh Versus State of Haryana 2012 (2) RCR (Criminal) 306; Sudhir Kumar Versus Padam Singh , 2022 (2) RCR (Criminal) 563 and a Division Bench of the Kerala High Court in Lillykutty Versus Lawrance , 2003 (4) RCR (Criminal) 805.

5. I have considered the respective submissions of counsel for the parties and perused the paper book.

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