The liability of the drawer of a cheque and the presumption in favor of the holder under Section 139 of the Negotiable Instruments Act.

JUDGMENT

Anjuli Palo, J. - In this petition under Section 482 of the Code of Criminal Procedure, the petitioner has challenged the validity of the order dated 07.06.2016 passed by learned Sessions Judge in Criminal Revision No.20 of 2016 whereby the revisional Court has partially allowed the revision of the petitioner but the prayer of the petitioner for examination of the cheque by handwriting expert under Sections 45 and 47 of the Evidence Act has been rejected.

2. The facts, in a nutshell, are that the respondent has filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner. During trial, the petitioner moved an application under Section 311 of the Cr.P.C. and another application under Section 45 and 47 of the Evidence Act seeking permission from the Court to get the cheque in question examined by the handwriting expert. The application for examination of the instrument by handwriting expert was rejected by the trial Court on 16.01.2016 stating that opinion of the expert is not necessary in the present case. Being aggrieved with the said order, the petitioner preferred a revision before the Sessions Court. The revisional court vide impugned order dated 07.05.2016 (Annexure P-2) affirmed the order of the trial Court so far as it pertains to rejection of the application under Sections 45 and 47 of the Evidence Act.

3. Learned counsel for the petitioner has vehemently contended that the basic defense of the petitioner is that the cheque in question has not been issued by him in favour of the respondent in lieu of any commercial transaction, however, the same was issued to him only as a security and it is also the defense of the petitioner that the petitioner had not mentioned any date, amount or name on the cheque and in order to prove that the handwriting on the cheque was not his, opinion of the handwriting expert is necessary. The Courts below have absolutely ignored the settled legal position that if there is signature of the accused on the blank cheque and there is difference in the writing on the cheque, the handwriting expert is required to be examined for arriving on proper conclusion. In support of his contentions, counsel for the petitioner has placed heavy reliance on the decisions in the cases of Sohanlal Singhal v. Sunil Jain, 2015 (1) MPLJ 422, Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258, Abhishek v. (2) MPLJ 472 and M.S. Narayanana Menon v. State of Kerala and Another, (2006) 6 SCC 39

4. On the other hand, learned counsel for the respondent has submitted that it is not disputed that the cheque in question was signed by the petitioner and therefore, the Court below has rightly rejected the application for examination by handwriting expert. It is further contended that it is admitted position that the cheque was given by the petitioner to the respondent for security purpose. Counsel for the respondent has referred to Section 20 of the Negotiable Instruments Act and has also drawn attention of this Court to the notice sent by the petitioner wherein it has been mentioned that the cheque in question was given by the petitioner by putting signature on it for the security purpose. In support of his contentions, counsel for the respondent has placed reliance on the order dated 01.12.2014 passed by Gwalior Bench of this Court in CRR No.56 of 2014

5. Heard learned counsel for the parties at length and perused the documents. I have also perused the decisions cited by the parties

6. The respondent - complainant preferred a complaint under Section 138 of the Negotiable Instruments Act against the petitioner as the cheque issued by the accused petitioner was dishonoured. The stand of the petitioner is that there was business relationship between the parties and the cheque was issued by the petitioner only for the purpose of security which was misused by the complainant. The petitioner filed an application under Sections 45 and 47 of the Indian Evidence Act for opinion of the handwriting ex