In CRM-M-45064-2019(O&M)-PUNJ HC- Even if handwriting expert testifies that signatory and author of cheque are different, accused still has to rebut presumption that cheque is valid tender and he made payment to complainant who filled up cheque and presented same leading to its dishonour: P&H HC Justice Jasjit Singh Bedi [13-06-2022]

Read Order: Rajesh Rana v. Parmod Kumar

Monika Rahar

Chandigarh, June 15,2022: The Punjab and Haryana High Court has recently held that the first step available with an accused to rebut the presumption that the cheque was 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 and 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 being dishonoured. 

Further, the Bench of Justice Jasjit Singh Bedi added, “On the other hand, if the permission to examine the handwriting expert is not permitted 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 by not allowing the examination of the cheque in question by a handwriting expert.”

The brief facts of the case are that the respondent/complainant filed a complaint under Sections 138/141/142 of the Negotiable Instruments Act, 1881 against Welkin Agro Industries Pvt. Ltd., and its two directors (including the accused-petitioner) on the allegation that the petitioner issued a cheque of Rs.15 lakhs in favour of the respondent which was dishonoured on account of “Insufficient Funds”. 

The respondent/complainant was examined as CW1. In cross-examination, a suggestion was put to him that in fact a blank cheque was given by the petitioner to one Subhash Chand (a commission agent) as a security to supply paddy as the company was running a rice mill but that cheque was misused by the complainant and the petitioner/accused never met with the respondent/complainant and had no liability towards the respondent.

It was also alleged that the cheque was not filled up by petitioner though it was signed by him. The complainant’s evidence was closed and the statement of the petitioner under Section 313 Cr.P.C. was recorded on the same day and the petitioner filed an application for calling the fingerprint and handwriting expert for comparing the handwriting in question on the same day. 

Meanwhile, in the statement under Section 313 Cr.P.C., the petitioner took the stand that the petitioner did not issue the cheque to the complainant rather the blank signed cheque was given to one Subhash Chand, Commission Agent as security but that was misused by the complainant in connivance with Subhash Chand. The said application for calling and examining the fingerprint and handwriting expert came to be dismissed by the impugned order of the Trial Court. 

The counsel for the petitioner/accused contended that the impugned order was passed without considering the mandatory provisions prescribed under Sections 243 Cr.P.C. and 247 Cr.P.C. The application for leading defence evidence could be rejected only if it was made for the purpose of vexation, delay or for defeating the ends of justice, the Counsel contended while adding that no such finding was recorded by the Trial Court. 

The Counsel also argued that the said application was dismissed only on the ground that since the accused admitted that he signed the cheque, the deposition of the expert witness was not required to compare the writing on the body of the cheque in question with handwriting of the signatory. 

After hearing the parties, the Court referred to a bunch of decisions of the Top Court and observed (after perusal of one such decision) 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 rebuttal thereof, as the law places burden on the accused, he must be given an opportunity to discharge it. 

Further, the Court was of the opinion that the complainant will invariably not disclose that the body of the cheque was filled up by him or at his instance even where the signatures on the cheque was accepted by the accused. 

“Without doubt, 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”, opined Justice Bedi while adding 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 being dishonoured. 

On the other hand, the Bench added, if the permission to examine the handwriting expert is not permitted 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 by not allowing the examination of the cheque in question by a handwriting expert”, asserted the Bench. 

Keeping in view the aforesaid discussion, the Court did not find merit in the present petition. Therefore, the application of the petitioner-accused was allowed and the impugned order was quashed.

“The petitioner-accused shall examine the handwriting expert as a defence witness within a period of four weeks from the date of receipt of a copy of this order and the Trial Court shall conclude the trial within a period of eight weeks thereafter”, the Court concluded.