The presumption of genuineness of signatures under Section 118 of the Negotiable Instruments Act requires the accused to provide evidence to rebut it, and failure to challenge prior rulings limits the ability to introduce additional evidence.

JUDGEMENT

Mehta, J.

1. Leave granted.

2. The instant appeal by special leave filed at the behest of the appellant accused calls into question the order dated 25th October, 2023 passed by the High Court of Gujarat rejecting the Criminal Misc. Application No. 17933 of 2023 preferred by the appellant under Section 482 read with Section 391 of the Code of Criminal Procedure, 1973 (hereinafter being referred to as ‘CrPC’).

3. The appellant was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter being referred to as ‘NI Act’) before the learned Court with an allegation that the cheque to the tune of Rs. 10 lakhs issued by the appellant in favour of the complainant Shri Mahadevsinh Cahndaasinh Champavat upon being presented in the bank was dishonoured “for insufficient funds and account dormant”.

4. During the course of trial, the appellant preferred an application dated 13th June, 2019 before learned trial Court with a prayer to send the cheque to the handwriting expert for comparison of the handwriting as well as signature appearing thereon with a plea that his signatures had been forged on the cheque in question. The learned trial Court rejected the application vide order dated 13th June, 2019 itself observing that the application was aimed at delaying the trial. The learned trial Court further observed that the matter was at the stage of defence and the accused could lead evidence to prove his claim pertaining to mismatch of signatures.

5. The order dated 13th June, 2019 passed by learned trial Court was not challenged any further and thus the same attained finality. The trial Court, proceeded to convict the accused appellant vide judgment dated 7th November, 2019.

6. The appellant preferred an appeal before the Principal Sessions Judge, Gandhinagar and during pendency thereof, he filed an application under Section 391 CrPC for taking additional evidence at appellate stage and seeking a direction to obtain the opinion of the handwriting expert after comparing the admitted signature of the accused appellant and the signature as appearing on the disputed cheque. Another prayer made in the said application was that the concerned officer from the Post Office should be summoned so as to prove the defence theory that the notice under Section 138 of NI Act was never received by the accused appellant.

7. Such application preferred by the appellant was rejected by the learned Principal Sessions Judge, Gandhinagar vide detailed order dated 25th July, 2023, which was carried by the appellant to the High Court by filing the captioned Criminal Misc. Application No. 17933/2023 which came to be dismissed by order dated 25th October, 2023 which is under challenge in this appeal.

8. We have considered the submissions advanced by learned counsel for the appellant and have gone through the impugned order and the material placed on record.

9. At the outset, we may note that the law is well-settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391 CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non- recording of such evidence may lead to failure of justice.

10. It is apposite to mention that the learned first appellate Court, i.e., the Principal Sessions Judge, Gandhinagar had taken note of the fact that during the trial, the appellant examined the witness of the Bank of Baroda in support of his defence but not a single question was put to the said witness regarding genuineness or otherwise of the signatures as appearing on the cheque in question.

11. Furthermore, as per the cheque return memo of the Bank dated 26th February, 2018, the reason for the cheque being returned unpaid is clearly recorded as “funds insufficien