An accused in a Section 138 NI Act case is entitled to seek expert handwriting opinion to rebut statutory presumptions and establish a bona fide defence regarding the execution of the cheque, as denial of such opportunity may violate the right to a fair trial.

COMMON ORDER:

Since both criminal petitions arise from similar factual circumstances, they were heard together and are disposed of by this common order.

2. Heard Mr. V. Venkata Subramanyam, learned counsel for the petitioner and learned Assistant Government Pleader appearing for respondent No.2.

3. Briefly stated, the relevant facts are that the petitioner/accused, who is engaged in the cinema business and is a resident of Hyderabad, is facing prosecution in two separate complaints instituted under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the N.I. Act”), on the file of the XVI Additional Judge-cum-XX Additional Chief Metropolitan Magistrate, City Civil Court, Secunderabad.

4. In Criminal Petition No. 1392 of 2024, the first respondent/complainant filed a complaint, which was taken on file as C.C. No. 2693 of 2019. During the pendency of the said proceedings, the petitioner filed Crl.M.P. No. 3954 of 2023 seeking examination of the cheque by a handwriting expert.

5. Similarly, in connection with C.C. No. 2695 of 2019 (arising out of a complaint filed by the same respondent), the petitioner filed Crl.M.P. No. 3953 of 2023 seeking identical relief, namely, expert examination of the disputed cheque.

6. In both matters, the trial Court, by separate orders dated 12.12.2023, dismissed the said applications. Aggrieved thereby, the present criminal petitions have been filed.

7.1. Learned counsel for the petitioner, in both criminal petitions, contends that the impugned orders passed by the trial Court are illegal, arbitrary, and contrary to the settled principles of natural justice. It is submitted that the trial Court failed to properly appreciate the factual matrix and dismissed the applications in a mechanical manner, without assigning cogent or legally sustainable reasons.

7.2. It is further contended that the relief sought namely, examination of the cheque by a handwriting expert is essential for a just and fair adjudication of the matter. Granting such relief would not cause any prejudice to the complainant; rather, it would assist the Court in arriving at the truth. The petitioner also asserts that the trial Court erroneously relied upon precedents that are inapplicable to the peculiar facts and circumstances of the present case.

7.3. The petitioner emphasizes that the complainant has taken inconsistent and contradictory stands regarding the filling up of the cheques, initially admitting that the cheques were filled by the petitioner, and subsequently denying that they were filled in their presence. This inconsistency, according to the petitioner, raises serious doubts and supports the defence plea that the cheques were misused, thereby necessitating expert examination. It is further submitted that the variations in handwriting on the cheques warrant scientific analysis by a handwriting expert to determine their authenticity and the manner of their execution.

7.4. The petitioner also contends that the trial Court misconstrued the scope of expert evidence by observing that an expert cannot determine whether the cheque was issued towards discharge of a legally enforceable debt. While it is conceded that such determination ultimately lies within the domain of the Court, it is argued that expert opinion is nonetheless relevant and admissible for the limited purpose of establishing the genuineness, authorship, and execution of the instrument forming the basis of the prosecution.

7.5. Learned counsel further submits that the trial Court mechanically applied the general proposition that a cheque may be filled by any person, without examining the specific factual inconsistencies present in the case at hand. The dismissal of the applications has, therefore, resulted in denial of a fair opportunity to the petitioner to effectively present his defence