* Author
[2024] 1 S.C.R. 1083 : 2024 INSC 63
Ajitsinh Chehuji Rathod
v.
State of Gujarat & Anr.
(Criminal Appeal No. 478 of 2024)
29 January 2024
[B.R. Gavai and Sandeep Mehta*, JJ.]
Issue for Consideration
Appellant-accused convicted u/s.138, Negotiable Instruments
Act, 1881, had claimed mismatch of signatures on the cheque
in question. His application for comparison of the signature as
appearing on the cheque through the handwriting expert was
rejected by trial court. High Court whether justified in dismissing
the application filed by the appellant u/s.391, CrPC for taking
additional evidence at appellate stage and seeking a direction to
obtain the opinion of the handwriting expert.
Headnotes
Negotiable Instruments Act, 1881 – ss.118, 138 – Code of
Criminal Procedure, 1973 – s.391 – Presumptions under the
NI Act though rebuttable, operate in favour of the complainant
– Accused to rebut such presumptions by leading evidence
– Cheque dishonoured – Appellant convicted for offence
punishable u/s.138 – Claiming mismatch of signatures,
during the trial, the appellant had filed application seeking
comparison of the signature as appearing on the cheque
through the handwriting expert – Rejected by trial court –
Order not challenged – At appellate stage, the appellant filed
application u/s.391, CrPC for taking additional evidence and
seeking a direction to obtain the opinion of the handwriting
expert – Dismissed:
Held: s.118 sub-clause (e) provides a clear presumption regarding
indorsements made on the negotiable instrument being in order
in which they appear thereupon – Thus, the presumption of the
indorsements on the cheque being genuine operates in favour of
the holder in due course of the cheque in question which would
be the complainant herein – If the accused intends to rebut
such presumption, he would be required to lead evidence to this
effect – Certified copy of a document issued by a Bank is itself
1084 [2024] 1 S.C.R.
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admissible under the Bankers’ Books Evidence Act, 1891 without
any formal proof thereof – Hence, in an appropriate case, the
certified copy of the specimen signature maintained by the Bank
can be procured with a request to the Court to compare the same
with the signature appearing on the cheque by exercising powers
u/s.73, Evidence Act, 1872 – However, in the present case,
despite having opportunity, the appellant did not put any question
to the bank official examined in defence for establishing his plea
of purported mismatch of signature on the cheque in question –
Hence, the appellate Court was not required to come to the aid
and assistance of the appellant for collecting defence evidence at
his behest – Power to record additional evidence u/s.391, CrPC
should only be exercised when the party making such request
was prevented from presenting the evidence in the trial despite
due diligence or the facts giving rise to such prayer came to light
at a later stage during pendency of the appeal and non-recording
of such evidence may lead to failure of justice – Furthermore, the
appellant also did not challenge the trial court’s order rejecting
his application for comparison of the signature as appearing on
the cheque through the handwriting expert and thus, had attained
finality – Impugned orders do not warrant interference. [Paras 14,
15, 17, 9, 18 and 20]
Code of Criminal Procedure, 1973 – s.391 – Power to record
additional evidence – Exercise of – Discussed. [Para 9]
Code of Criminal Procedure, 1973 – s.391 – Negotiable
Instruments Act, 1881 – s.138 – Appellant-accused alleged
that he did not receive the notice u/s.138 of the NI Act and
the concerned officer from the Post Office be summoned to
prove the same:
Held: It would be for the appellate Court while deciding the appeal
to examine such issue based on the evidence available on record
– Thus, there was no requirement for the appellate Court to have
exercised power u/s.391, CrPC for summoning the official from the
Post Office and it rightly rejected the application u/s.391, CrPC.
[Para 19]
List of Acts
Negotiable Instruments Act, 1881; Code of Criminal Procedure,
1973; Bankers’ Books Evidence Act, 1891; Evidence Act, 1872.
[2024] 1 S.C.R. 1085
Ajitsinh Chehuji Rathod v. State of Gujarat & Anr.
List of Keywords
Cheque dishonour; Presumptions under Negotiable Instruments
Act; Rebuttable; Indorsements made on negotiable instrument;
Holder in due course; Mismatch of signatures; Comparison of the
signature; Handwriting expert; Appellate stage, Additional evidence;
Document issued by Bank; Certified copy; Specimen signature
maintained by Bank; Bank official; Appellate Court; Failure of justice.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.478
of 2024.
From the Judgment and Order dated 25.10.2023 of the High Court
of Gujarat at Ahmedabad in CRMA No.17933 of 2023.
Appearances for Parties
Shariq Ahmed, Sunil Kumar Verma, Vinay Vats, Tariq Ahmed for
M/s. Ahmadi Law Offices, Advs. for the Appellant.
Judgment / Order of the Supreme Court
Judgment
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 trial 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
1086 [2024] 1 S.C.R.
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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.
[2024] 1 S.C.R. 1087
Ajitsinh Chehuji Rathod v. State of Gujarat & Anr.
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 insufficient and account dormant”.
12. There is a specific column no. 10 in the said written memo which
reads as follows:-
“Bank of Baroda
(HEAD OFFICE MANDVI, BARODA)
Infocity Branch Date: 26.02.2018
Cheque No. 503273 for Rs. 10,00,000/- returned unpaid
for reason No. 22 3093010008596
1-9 ….
10 Drawer’s signature differs from specimen recorded
with us.
11-22 ….”
Manifestly, the cheque was not returned unpaid for the reason
that the signature thereupon differed from the specimen signature
recorded with the bank.
13. Section 118 of the NI Act has a bearing upon the controversy and
is thus, reproduced hereinbelow:-
“118. Presumptions as to negotiable instruments.—
Until the contrary is proved, the following presumptions
shall be made:
(a) of consideration: that every negotiable instrument
was made or drawn for consideration, and that every
such instrument, when it has been accepted, indorsed,
negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration;
1088 [2024] 1 S.C.R.
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(b) as to date: that every negotiable instrument bearing
a date was made or drawn on such date;
(c) as to time of acceptance: that every accepted bill
of exchange was accepted within a reasonable time
after its date and before its maturity;
(d) as to time of transfer: that every transfer of a
negotiable instrument was made before its maturity;
(e) as to order of indorsements: that the indorsements
appearing upon a negotiable instrument were made
in the order in which they appear thereon;
(f) as to stamps: that a lost promissory note, bill of
exchange or cheque was duly stamped;
(g) that holder is a holder in due course: that the holder
of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful
owner, or from any person in lawful custody thereof, by means of an
offence or fraud, or has been obtained from the maker or acceptor
thereof by means of an offence or fraud or for unlawful consideration,
the burden of proving that the holder is a holder in due course lies
upon him.”
14. Section 118 sub-clause (e) of the NI Act provides a clear presumption
regarding indorsements made on the negotiable instrument being in
order in which they appear thereupon. Thus, the presumption of the
indorsements on the cheque being genuine operates in favour of
the holder in due course of the cheque in question which would be
the complainant herein. In case, the accused intends to rebut such
presumption, he would be required to lead evidence to this effect.
15. Certified copy of a document issued by a Bank is itself admissible
under the Bankers’ Books Evidence Act, 1891 without any formal
proof thereof. Hence, in an appropriate case, the certified copy of
the specimen signature maintained by the Bank can be procured
with a request to the Court to compare the same with the signature
appearing on the cheque by exercising powers under Section 73 of
the Indian Evidence Act, 1872.
[2024] 1 S.C.R. 1089
Ajitsinh Chehuji Rathod v. State of Gujarat & Anr.
16. Thus, we are of the view that if at all, the appellant was desirous of
proving that the signatures as appearing on the cheque issued from
his account were not genuine, then he could have procured a certified
copy of his specimen signatures from the Bank and a request could
have been made to summon the concerned Bank official in defence
for giving evidence regarding the genuineness or otherwise of the
signature on the cheque.
17. However, despite having opportunity, the accused appellant did not put
any question to the bank official examined in defence for establishing
his plea of purported mismatch of signature on the cheque in question
and hence, we are of the firm opinion that the appellate Court was
not required to come to the aid and assistance of the appellant for
collecting defence evidence at his behest. The presumptions under
the NI Act albeit rebuttable operate in favour of the complainant.
Hence, it is for the accused to rebut such presumptions by leading
appropriate defence evidence and the Court cannot be expected to
assist the accused to collect evidence on his behalf.
18. The appellant had sought for comparison of the signature as
appearing on the cheque through the handwriting expert by filing
an application before the trial Court which rejected the same vide
order dated 13th June, 2019. The said order was never challenged
and had thus attained finality.
19. So far as the allegation of the accused appellant that he did not
receive the notice under Section 138 of the NI Act is concerned,
it would be for the appellate Court while deciding the appeal to
examine such issue based on the evidence available on record
and thus, there was no requirement for the appellate Court to have
exercised power under Section 391 CrPC for summoning the official
from the Post Office and had rightly rejected the application under
Section 391 CrPC.
20. As an upshot of the above discussion, we find no infirmity in the
impugned orders warranting interference. The appeal lacks merit
and is dismissed as such.
21. Pending application(s), if any, shall stand disposed of.
Headnotes prepared by: Divya Pandey Result of the case: Appeal dismissed.
