The presumption of issuance under Section 139 of the NI Act stands unless the accused provides cogent evidence to counter it, expert opinion on handwriting is not sufficient alone.

O R D E R

Dated, this the 12th January, 2023 This is a petition filed under Section 482 of the Code of Criminal Procedure by the petitioner, who is the accused in CMP No.872/2022 in C.C.No.868/2017 dated 16.11.2022 on the files of Judicial First Class Magistrate Court-I, Muvattupuzha, where the accused alleged to have committed offence punishable under Section 138 of the Negotiable Instruments Act .

2. Heard the learned counsel for the petitioner on admission.

3. It is submitted by the learned counsel for the petitioner that when PW1 was cross- examined suggesting that Ext.P1 cheque along with the other three blank signed cheques were handed over to the complainant,(PW1), and PW1 himself had written the name, date and amount in the cheque and presented the cheque for collection, PW1 given evidence that Ext.P1 cheque was written and signed by the accused at the office cabin of the accused. Relying on this evidence, it is argued that the specific case of the accused is that the cheque was issued as a blank signed one as security. According to the learned counsel for the petitioner, since the complainant had given evidence that the cheque was written in the handwriting of the accused, an expert opinion to ascertain whether the accused had written the cheque in his own hand writing is very much essential to rebut the presumptions in favour of the complainant.

4. The learned counsel for the petitioner placed decision of this Court in Crl.M.C. No.5312/2017 dated 04.10.2017 in support of this contention. In the said decision, it was held that when the accused denies the handwriting in the cheque as that of him and the complainant asserts that the same, it is necessary in the interests of justice to get expert opinion.

5. Going by the order, the learned Magistrate relied on the decision reported in [2022 (KHC) 428] Santhosh Mathew and another v. Santhosh and another, wherein it was held that when it is admitted by the accused that he has issued the cheque voluntarily and duly signed proof of authorship of handwriting by which the entries in the disputed cheque have been filled up is irrelevant. The proof of authorship of handwriting by which the entries in the disputed cheque have been filled up is irrelevant, when it is admitted by the accused as issued duly signed and voluntarily. The onus lies on the accused in such a context to rebutt the presumption by establishing that the disputed signed cheque has reached the hands of the complainant in a manner different from that alleged by the complainant.

6. Further in the decision reported in [ 2019(1) KHC 774 ] Bir Singh v. Mukesh , it was held that even a blank cheque leaf voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act , in the absence of any cogent evidence to show that, the cheque was not issued in discharge of a debt. Relying on the above decisions, the learned Magistrate dismissed the application.

7. In this context, it is relevant to note that PW1 was examined as early as on 13.09.2018. No application filed by the accused to send the cheque for getting expert opinion, till 2022. The learned Magistrate also noted this fact. Thus, it appears that prima facie the present application has been filed at a much belated stage, even after getting the defence evidenced by examining the accused as DW1.

8. That apart in the decision of the Apex Court reported in [2022(5) KHC 560(SC)], Oriental Bank of Commerce v. Prabodh Kumar Tewari, it has been held as under:

“17. .., the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand- writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a