In CRM-M-33407-2017 -PUNJ HC- Even if handwriting of signatory and author of cheque is distinguished by expert, accused will still have to rebut presumption that cheque is valid tender & he made payment to complainant: P&H HC Justice Jasjit Singh Bedi [23-05-2022]

Read Order: Krishna Devi Shukla v. K.S. Oil Limited

Monika Rahar

Chandigarh, May 28, 2022: The Punjab and Haryana High Court has held that even if the accused has rebutted the presumption that the cheque was issued for the discharge of a legally enforceable debt by examining a handwriting expert to testify that the signatory and the author of the body of the cheque are different persons, the accused will still have to rebut the presumption that the cheque is a valid tender and he had made the payment to the complainant but despite that fact, the complainant filled up the cheque and presented the same leading to its dishonouring.

The Bench of Justice Jasjit Singh Bedi was dealing with a petition seeking quashing of the order of the Trial Court whereby the application of the petitioner-accused to examine a handwriting expert in her defence was rejected. Challenge was also to the order whereby the afore-mentioned order was upheld. 

The brief facts of the case are that the petitioner was summoned in a complaint case alleging that the cheque issued by the petitioner-accused to the complainant was dishonoured leading to the summoning of the petitioner. The trial was proceeding and the case was fixed for leading of defence evidence more particularly, the cross-examination of defence witnesses. 

The petitioner-accused moved an application for seeking the report of a handwriting expert in respect of the cheque in dispute on the ground that she (the complainant) was an illiterate lady, who signed in Hindi and the said disputed cheque was forged by the complainant-company by filling the date as well as the amount and the body of the cheque. 

As per the petitioner, the said cheque was in fact one of five cheques handed over to the complainant-company vide letter and therefore, it was necessary to examine a handwriting expert to compare the signatures on the cheque with the handwriting on the body of the cheque. 

The Trial Court came to the conclusion that as per Section 20 of the NI Act, when an instrument is duly signed by the drawer and handed over to the holder in due course, the rest of the body of the instrument can be filled by the holder of the instrument and if the same is dishonoured, appropriate proceedings under Section 138 of the NI Act could be initiated against the accused. 

Thus, it was held that even if the handwriting expert came to the conclusion that the handwriting of the person who signed was different from the handwriting of the person who filled up the body of the cheque, it would not further the case of the accused in any manner to establish his defence. Therefore, the Lower Court held that once there was no dispute regarding the signature of the accused on the dishonoured cheque, the prayer made in the application of the petitioner/accused was superfluous. Reliance was placed on Gurmeet Singh Versus State of Haryana and another, 2012(2) RCR (Criminal)306. 

When this order was challenged, the Court of Additional District Judge, Chandigarh endorsed the finding of the Trial Court. Reference in this regard was made to Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited 2016(4) R.C.R. (Civil) 487, where it was held that in case of a loan taken by the accused, if a post dated cheque is issued towards repayment but described as a security cheque, the dishonour of the cheque would make the accused liable once the issuance of the cheque and signature thereon were admitted.

The counsel for the petitioner contended that the judgments of the Trial Court and the Lower Appellate Court were completely contrary to T. Nagappa Versus Y.R. Muralidhar, 2008(3) R.C.R. (Criminal) 926, 2008(5) SCC 633. 

On the contrary, the Counsel for the complainant argued that the signatory of the cheque does not necessarily have to be the person who has filled up the body of the cheque in terms of Section 20 of the NI Act. Reference in this regard was made to Sampelly Satyanarayana Rao’s case (supra) and Bir Singh Versus Mukesh Kumar.

From the perusal of T. Nagappa’s case etc. (supra), the Court observed that when a contention is raised that the complainant has misused the cheque by filling up the body of the same, even in a case, where a presumption can be raised under Section 118(a) or 139 of the Negotiable Instruments Act, an opportunity must be granted to the accused for adducing evidence in rebuttable thereof. 

In light of the law laid down by all the above-cited precedents, the Court opined that the holder of the cheque has the authority to fill the same and the cheque would be a valid instrument but to start with, the first step available with an accused to rebut the presumption that the cheque had been issued for the discharge of a legally enforceable debt is by examining a handwriting expert to testify that the signatory and the author of the body of the cheque are different persons. 

Further Justice Bedi added that even if the difference in writing is established, the accused will still have to rebut the presumption under the Act, that the cheque is a valid tender and that he had made the payment to the complainant but despite that fact, the complainant filled up the cheque and presented the same leading to it’s dishonouring.  

Additionally, it was held that if the permission to examine the handwriting expert is not given on the ground that the holder has the authority to fill the body of the cheque, then the accused cannot even begin to establish his defence that a cheque issued as security has been filled up by someone other than him and misused. Thus, it would be unfair to shut out the defence of the accused at the threshold, held the Court. 

Also, it was observed by the Court that the judgment in T. Nagappa’s case (supra) lays down the law more elaborately and accurately than the judgments in Bir Singh’s case (supra), which only reiterate the position of law that the signatory of the cheque need not filled in the body of the cheque for the cheque to be a valid cheque. The petition was thus, allowed.