O R D E R

Petitioner is the sole accused in C.C No.385/2018 on the files of the Special Court of Judicial Magistrate of the First Class, for the Trial of Cases under Section 138 of Negotiable Instruments Act, 1881, Thiruvananthapuram. Petitioner challenges the order dated 26.09.2024 in CMP No.5243/2024, dismissing his application for sending the cheque to a handwriting expert to compare the writings on the cheque.

2. The complaint was filed alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, contending that the cheque for Rs.12,00,000/- issued on 24.03.2017 when presented for encashment returned dishonoured with the memo “Funds insufÏcient”. It is also alleged that, though notice was served on the accused he failed to reply or repay the amount. After the complaint was filed, the accused preferred an application requesting to compare the writings on the cheque with that of the writings of the accused by sending the cheque to a handwriting expert. The learned Magistrate dismissed the said application against which this Crl.M.C is filed.

3. I have heard Sri. R.V. Sreejith, the learned counsel appearing for the petitioner as well as Sri. C.N. Prabhakaran, the learned Public Prosecutor.

4. The complaint was filed in the year 2018. PW1 was examined on 15.07.2024 and the accused failed to cross-examine the complainant. In fact, the Trial Court had imposed costs on the complainant for not cross-examining the accused and seeking an adjournment, as evidenced from the E-Courts website. The application for sending the cheque for forensic examination has been filed after obtaining such an adjournment.

5. On a perusal of the impugned order, it is noticed that the learned Magistrate has relied upon the judgment of the Supreme Court in Oriental Bank of Commerce v. Prabodh Kumar Tewari [2022 SC Online SC 1089)]. In the aforesaid judgment, it was observed as follows:

“A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under Section 139.

16. In Anss Rajashekar v. Augustus Jeba Ananth, a two Judge Bench of this Court, of which one of us (D.Y. Chandrachud J.) was a part, reiterated the decision of the three-Judge Bench of this Court in Rangappa v. Sri Mohan on the presumption under Section 139 of the NI Act. The court held:

12. Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability.

The expression “unless the contrary is proved” indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a “reverse onus clause” the three-Judge Bench of this Court in Rangappa held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities. This Court held thus:

“28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the (2021) 5 SCC 283(2020) 15 SCC 348 (2010) 11 SCC 441 presumption under Section 139, the standard of proof for doing so is that of “preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” (emphasis supplied)

17. For such a