A cheque's validity remains intact despite entries by a third party unless proof shows lack of intention by the drawer regarding those entries.

O R D E R

The order dated 08.12.2020 of the Judicial First Class Magistrate Court-IV, Thrissur in C.M.P NO.284/2017 in S.T No.6/2016 refusing the request of the accused in the said case to send the cheque involved in that case for expert analysis of the handwriting therein, is under challenge in this petition filed under Section 482 Cr.P.C.

2. The offence alleged in the aforesaid case is under Section 138 of theNegotiable Instruments Act(for short, ‘the N.I Act’). Right from the very beginning, the petitioner/accused took up the defence that the aforesaid cheque was issued as a signed blank cheque and that it was not supported by any consideration. It is the further case of the petitioner that the complainant/first respondent had caused all the entries including the amount mentioned in that cheque, except the signature of the petitioner, and presented the same without the knowledge of the petitioner. During cross-examination, the complainant/PW1 strongly denied the above version and stated that the petitioner had made the above entries at the residence of the complainant in his presence. Now, the petitioner seeks to disprove the above statement of the complainant by analysing through an expert, the handwritings in the impugned cheque with the admitted handwriting of the petitioner.

3. The learned Magistrate rejected the above request by relying on the dictum laid down by the Hon’ble Supreme Court in Bir Singh v. Mukesh Kumar [2019 (1) KLT 599 SC], and observed that filling up the particulars in the cheque by a person other than the drawer, will not invalidate the cheque. Aggrieved by the above order, the petitioner is here before this Court with this petition.

4. Heard the learned counsel for the petitioner, the learned counsel for the first respondent, and the learned Public Prosecutor representing the State of Kerala.

5. It is true that a cheque will not be rendered invalid or disqualified for criminal prosecution under Section 138 of the N.I Act for the reason that the entries in that cheque are made by a person other than the signatory to that cheque, who is the drawer. But, at the same time, if there is evidence to show that the signatory to that cheque never intended to incorporate the other entries like amount, date and the name of the payee, and that those entries were incorporated in that document without the knowledge and consent of the drawer, then it would lead to the irresistible conclusion that the said cheque was not duly executed by the drawer. In other words, the proof of due execution of a cheque by the drawer requires the inevitable evidence that the entries in that cheque including the amount and date were made in accordance with the will of the drawer. The question whether those entries were made by a third person is insignificant if it is shown that the drawer of the cheque intended to have those entries in the cheque issued by him. However, in a case where the person who has been prosecuted for the commission of offence under of the N.I Act strongly disputes the entries in the cheque including the amount, date, name of the payee etc., he cannot be curtailed of his right to adduce evidence in support of the above contention. As far as the present case is concerned, the petitioner seeks to establish his contention that he did not make the entries like amount, date, name of the payee etc in the impugned cheque as stated by the complainant/first respondent before the Trial Court. If the petitioner succeeds in showing that the above entries were not made by him in the impugned cheque, then it would lead to the irresistible conclusion that the complainant/first respondent made false statements before the Trial Court in his e