The court affirmed that an admitted signature on a cheque negates the necessity for forensic examination of disputed writings, as the presumption of liability can be rebutted through other legal means.

ORDER

Petitioner is the accused in S.T.No.175/2019 on the files of the Judicial First Class Magistrate Court-II (Forest Offences), Manjeri. The aforesaid proceeding arises under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’). Though the signature of the cheque was admitted, petitioner filed an application to send the cheque for forensic examination to a handwriting expert. By the impugned order dated 06.06.2024, the learned Magistrate dismissed the application. Petitioner challenges the said order.

2. Sri. P.Venugopal, the learned counsel for the petitioner, vehemently contended that the presumption under Section 139 of the NI Act is a rebuttable one. A contradictory opinion from a handwriting expert regarding the writings on the cheque could go a long way in advancing his cause, especially when the complainant had deposed that the cheque was written by the accused and he had filled up the cheque in front of the complainant. According to the learned counsel, though the signature is admitted, since the writings are disputed, the opinion of handwriting expert was essential to prove his case.

3. Sri. C.N.Prabhakaran, the learned Public Prosecutor, submitted that since the signature is admitted, there is no necessity for sending the cheque for forensic examination, that too at this belated stage.

4. A perusal of the impugned order indicates that the learned Magistrate had relied upon the recent judgment inOriental Bank of Commerce v.Prabodh Kumar Tewari [ 2022 SCC Online SC 1089 ] as well as the decision in Deepak v. State of Kerala [ 2024 KHC Online 109 ]. The learned counsel for the petitioner attempted to distinguish the decision inOriental Bank of Commerce v.Prabodh Kumar Tewari by stating that the facts in the present case are totally different since the accused never had a case that he had handed over the cheque to the defacto complainant and on the other hand, his specific case was that he had signed the blank cheque and handed it over to a third party. 5. Notwithstanding the above distinction attempted to be brought in by the learned counsel for the petitioner, I am of the view that the principles remain the same that when a negotiable instrument is handed over to another person, he is entitled to fill it up and present the cheque for encashment as long as he acted within the limits of his authority, and the question that requires consideration is the existence or otherwise of a legally enforceable debt or liability.

6. Being a negotiable instrument, it does not matter whether it was handed over as a blank cheque or not. Of course, the accused is entitled to adduce evidence to rebut the presumption available under law. However, the opinion of a handwriting expert by itself cannot necessarily be one such material, especially when the signature on the cheque is admitted. Therefore, merely because the cheque was not permitted to be sent for forensic examination to identify whether the writings on it were that of the accused or not cannot cause any prejudice to the accused, as he will have every other remedy available under law to rebut the presumption. Therefore, I do not find any reason to interfere with the discretion exercised by the learned Magistrate.

Accordingly, this criminal miscellaneous case is dismissed.