The court ruled that without contemporaneous documents for signature comparison, requests for expert opinions in Section 138 cases lack merit and constitute an attempt to delay proceedings.

JUDGMENT

This original petition is filed with following prayers:

i. To set aside Exhibit-P4 order and allow Exhibit-P3 petition ii. To grant such other and further reliefs as this Hon’ble court may deem fit and proper in the facts and circumstances of the case.

(SIC)

2. Petitioner is the accused in ST No.5277/2023 on the file of the Judicial First Class Magistrate Court-I, Kottayam. It is a prosecution initiated against the petitioner by the 2^nd respondent under Section 138 of the Negotiable Instruments Act (for short, NI Act). The petitioner filed an application for expert opinion to compare the hand writings and signature of the petitioner in the cheque with that of the vakkalath nama filed in that case. The same is rejected by the learned Magistrate as per Ext.P4 order. Aggrieved by the same, this original petition is filed.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. I also heard that the learned counsel for the 2^nd respondent.

4. The learned Magistrate, after considering the matter in detail, dismissed the petition. It will be better to extract the relevant portion of that order:

“5. Furthermore, the accused has not produced any contemporaneous document bearing their signature from the period when the disputed cheque was allegedly executed. If the accused intended to demonstrate a discrepancy in their signature, the appropriate course would have been to produce a document contemporaneously executed during the relevant period, which could serve as a reliable basis for comparison. The absence of such a document significantly weakens the contention of the accused. The request to compare the signature on Exhibit P1 with the signature in the Vakalathnama, which was admittedly executed much later, is therefore without merit.

6 Additionally, the accused has not placed on record any prima facie evidence to substantiate their claim that the cheque was obtained by fraudulent or illegal means. A bald assertion that the cheque was obtained unlawfully, without any supporting material, does not justify the necessity of expert opinion. The burden lies on the accused to rebut the presumption under the Negotiable Instruments Act with substantial and admissible evidence. In the absence of any such material, the request for expert examination appears to be an attempt to delay the proceedings rather than a bona fide effort to establish a valid defense. Considering the legal principles governing presumption under the , the lack of any contemporaneous document for signature comparison, and the failure of the accused to furnish any prima facie evidence to support their allegations, I find no sufficient ground to allow the petition. The request for sending the cheque for expert examination is unwarranted and does not merit consideration. Accordingly, the petition stands dismissed.”

5. The learned Magistrate clearly stated that the comparison, if wanted, should be with some contemporaneous documents executed by the petitioner. If such a prayer is allowed in a prosecution under Section 138 of the NI Act, any accused can file a vakkalath nama with a wrong signature and send the cheque and vakkalath nama for expert opinion, so that he will get favourable report from the expert. Such practice should not be allowed. But I make it clear that if there is any contemporaneous document to show the signature of the petitioner, which is prior to the execution of the cheque, the petitioner can do the needful in accordance with law, if law permits the same.