CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 1 of 20
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. 5211/2006, CRL.M.C. 5217/2006 CRL.M.C. 5291/2006
21. CRL.M.C. 5211/2006 & CRL. M.A. No.8864/2006
Date of order : 13
th
March, 2008
RAVI CHOPRA ..... Petitioner
Through:Mr. Sudhir Nandrajog, Advocate with
Mr. Ujjwal K. Jha, Advocate
versus
STATE & ANOTHER ..... Respondents
Through: Ms. Amrit Kaur Oberoi, Advocate
for respondent No.2.
Mr. Pawan Behl, APP
WITH
22. CRL.M.C. 5217/2006 & CRL. M.A. No.8877/2006
RAVI CHOPRA ..... Petitioner
Through:Mr. Sudhir Nandrajog, Advocate with
Mr. Ujjwal K. Jha, Advocate
versus
STATE & ANOTHER ..... Respondents
Through: Ms. Amrit Kaur Oberoi, Advocate
for respondent No.2.
Mr. Pawan Behl, APP
AND
23. CRL.M.C. 5291/2006 & CRL. M.A. No.8961/2006
RAVI CHOPRA ..... Petitioner
Through:Mr. Sudhir Nandrajog, Advocate with
Mr. Ujjwal K. Jha, Advocate
versus
STATE & ANOTHER ..... Respondents
Through: Ms. Amrit Kaur Oberoi, Advocate
for respondent No.2.
Mr. Pawan Behl, APPCRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 2 of 20
O R D E R
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
Dr. S. Muralidhar, J (open court)
1. These petitions under Section 482 of the Code of Criminal Procedure,
1973 („CrPC‟) seek to challenge an order dated 18
th
July, 2006 passed by the
learned Metropolitan Magistrate („MM‟) rejecting an application filed by the
Petitioner for sending the dishonoured cheques, in respect of which the
complaint cases were filed against the Petitioner for the offences under
Section 138 of the Negotiable Instruments Act, 1881 („NI Act‟), to the
Central Forensic Science Laboratory („CFSL‟) for its opinion on the
handwriting on the cheques.
2. The cheques in question are Nos. 836720, 445534 and 752076 all dated 1
st
May, 2004 for a sum of Rs. 1 lakh each in respect of which Complaint Case
No. 339 of 2004 was filed, Nos. 328114 dated 11
th
May, 2004 for a sum of
Rs.2 lakhs and No. 520660 dated 11
th
May, 2004 for a sum of Rs.1 lakh in
respect of which Complaint Case No. 340 of 2004 was filed, and Nos.
752064 and 555267 both dated 7
th
May, 2004 for a sum of Rs.1 lakh each in
respect of which Complaint Case No. 341 of 2004 was filed. The aggregate
sum of all these cheques is Rs.8 lakhs. The case of the complainant is that
on different dates from 2000 to 2003 the Petitioner accused took a loan of CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 3 of 20
Rs.8 lakhs and issued the aforementioned cheques towards his liability for
repayment of the loans. All the cheques were drawn on Punjab National
Bank („PNB‟), Tolstoy House, New Delhi. Some of the cheques when
presented returned dishonoured with the remarks “account closed” and some
others on the ground “funds insufficient”. Despite the complainant sending
notices demanding payment, the Petitioner did not make payment within the
statutory period.
3. At the trial after the complainant‟s evidence was recorded the petitioner
examined himself as a defence witness and filed an affidavit by way of
examination-in-chief. The stand taken in his affidavit was that the Petitioner
was working as an officer in PNB. He was introduced to the complainant in
the year 1997 by the brother-in-law of the complainant who was a colleague
of the Petitioner at PNB. It is stated that Petitioner‟s brother Mr. Rajesh
Chopra was in a real estate business at that point in time. The complainant,
on coming to know this, expressed his desire to invest money in the real
estate business. Therefore the petitioner introduced the complainant to his
brother Mr.Rajesh Chopra. It is stated that during the period 1997-98 the
complainant invested the aforementioned sum in the real estate business of
his brother and it was agreed that the invested money would be repaid
shortly. The complainant then insisted upon the Petitioner here standing
surety for his brother. It is stated that pursuant to this request, the Petitioner
issued the aforementioned cheques from his staff account at the PNB leaving
blanks in the material particulars i.e. “without filling name, date and
crossing”. It is also the case of the Petitioner here that “the complainant also
obtained 3 letters from the deponent having the dates left blank for receiving CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 4 of 20
the said amount of these loans and cheques were issued on the assurance that
the cheques and loans would be returned once the amount is paid to the
complainant.” It is claimed by the Petitioner that a sum of Rs.4 lakhs was
repaid in the last week of October 2000 to the complainant and when he was
asked to return the cheques and letters he was assured that it would be sent
to the Petitioner in due course and that the Petitioner trusted him to do so. A
further sum of Rs.1 lakh was repaid in January 2001 after the Petitioner took
a voluntary retirement from PNB in December 2000. It is stated that despite
several efforts the Petitioner was unable to get the complainant to return the
blank cheques.
4. It is claimed by the petitioner that the complainant had filed the
aforementioned three complaints after filling the name of the payee, the date
and crossing the cheques. It is alleged that the complainant also filled the
date of the cheques in the letters with malafide and dishonest intentions. The
Petitioner claimed that after taking voluntary retirement, he closed his staff
account with the PNB on 21
st
March 2001. Further he changed his signature
in his saving bank account with Bank of Baroda, Mayur Vihar Phase-III
Branch.
5. On the basis of these allegations the accused filed an application in each
of the aforementioned complaints on 3
rd
April, 2006 seeking reference of the
cheques to the CFSL for opinion on the handwriting therein claiming that
“the report of CFSL experts will falsify the entire case of the complainant
filed to harass the deponent to extort money from him.” The prayer in the
application was that the cheques and letters in question should be sent to the CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 5 of 20
CFSL “to seek scientific report and on insertion of name and address”.
6. By an order dated 31
st
August 2006 the learned MM dismissed the
application holding as under:
“Even if it is presumed that the name and date in the
cheque was filed by the complainant himself even in that
case also there is no need for sending the cheque in
dispute to CFSL for expert opinion as the signature on
the cheques is admitted by the applicant/accused and he
has further admitted that these cheques were issued to the
complainant in discharge of his liability.
In view of the discussion made above, I am of the view
that there is no need for sending the cheques in question
to CFSL for expert opinion as no cogent and sufficient
ground has been shown by the applicant/accused.
Accordingly the application moved by the applicant is
dismissed being without any merit.”
7. By an order dated 29
th
August 2006 this Court, while directing notice to
issue in these petitions, ordered that the trial court will not pass a final order.
That interim order has continued till date.
8. The submission of Mr. Sudhir Nandrajog, learned counsel for the
Petitioners is that the purpose of seeking the reference of the cheques in
question to the CFSL for expert opinion on the handwriting was mainly to
probablise the Petitioner‟s defence in the trial which was to the effect that by
the time the cheques were presented for payment, the petitioner had
discharged the liability. While the petitioner does not dispute his signatures
on the cheques, it is claimed that the material particulars i.e. the date, the
name of the payee and the amount in words and figures have all been
subsequently filled up by the complainant before presenting the cheques for
payment. In other words it could be shown that the cheques were filled up on CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 6 of 20
a date subsequent to the period between 1997 and 2001 by which time the
entire liability had been extinguished. This could be shown by testing the ink
to ascertain the time when the signatures were appended and the material
particulars were filled up. Also, it could be shown that the handwriting of
both was different. In turn, it would show that what was handed over to the
complainant by the petitioner was not a „cheque‟ within the meaning of
Section 138 NI Act, i.e. a complete cheque with no blanks.
9. Mr. Nandrajog implores the Court to appreciate that the entire evidence
was in the control of the complainant and there was no way, without the
assistance of the court, the petitioner can expect to bring on record evidence
by way of defence. It was finally urged that with a view to dispelling the
impression that the petitioner was seeking to delay the completion of the
trial and in order to demonstrate his bonafides, the petitioner was willing to
deposit in this Court the entire sum of Rs.8 lakhs and was willing to let the
money be paid to complainant if the opinion of the handwriting expert did
not substantiate the defence of the petitioner.
10. Reliance is placed by counsel for the petitioner upon the judgment of this
Court in BPDL Investments (Pvt.) Ltd. v. Maple Leaf Trading
International (Pvt.) Ltd. 129 (2006) DLT 94 to contend that if there are
material alterations in the cheque then such an instrument is rendered void
and could not have been presented for payment to the bank. Reliance is also
placed on the decision of the Supreme Court in Kalyani Baskar v.
M.S.Sampoornam (2007) 2 SCC 258 to contend that every possible
assistance should be offered by the court when an accused in a complaint CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 7 of 20
case seeks directions to refer a disputed cheque for the opinion of a
handwriting expert. It is submitted that in the said case the Supreme Court
held that where a cheque was doubted as to its authenticity, the trial court
ought not to refuse the request of the accused sending it for the opinion of
the expert.
11. Ms. Amrit Kaur Oberoi, learned counsel appearing for the Respondent
No.2 points out that these proceedings are an attempt to somehow delay the
matter after the entire evidence has been recorded by the trial court. She
further points out that the accused himself has been examined and in his
reply he admitted that he has issued the cheques in favour of the
Respondents and also sent the covering letters enclosing the cheques in
question. She further points out that for the purposes of Section 138 NI Act
all that is to be seen is that the cheque was validly signed by the drawer.
According to her that Section imposes a „no fault liability‟ on the drawer if it
is shown that the drawer had signed the cheque and if other conditions
indicated in that Section were fulfilled. She supports the impugned order of
the learned MM as being justified in the facts and circumstances.
12. The first part of Section 138 NI Act indicates that there are two essential
ingredients that have to be present in order to attract the offence under
Section 138 NI Act. The first is that the cheque ought to have been „drawn‟
by the drawer in favour of the payee on an account with a bank. As regards
this ingredient, the petitioner submits that the cheques were signed by him
but they were incomplete instruments since they did not contain the material
particulars. In fact, in the form they were handed over to the complainant, CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 8 of 20
they were not cheques in the sense of the term as contemplated by the NI
Act.
13. The second ingredient is that the issuance of the cheque must be in total
or partial discharge of the liability owed by the drawer to the payee. This has
to be seen also in the light of Section 139 NI Act which states that “it shall
be presumed unless the contrary is proved, that the holder of a cheque
received the cheque, of the nature referred to in section 138, for the
discharge, in whole or in part, of any debt or other liability.” As regards this
ingredient, the complainant contends that the cheques were issued towards
the repayment of the loan borrowed by the Petitioner. The Petitioner
however disputes that and states that there was no liability to be discharged
by the Petitioner by the time the cheques were presented for payment. What
requires to be noticed in addition is that even according to the Petitioner,
although he purports to have closed his account with the PNB in March 2001
itself, he admittedly did not inform the complainant of this fact or that he
had ceased to be in service with the PNB since March 2001. The question of
referring, disputed cheques for the opinion of the CFSL has to be understood
in the above background.
14. The word “cheque” has been inclusively defined under Section 6 NI Act
to include a „bill of exchange drawn on a specified banker and not expressed
to be payable otherwise than on demand…”. The words “bill of exchange”
have been defined in Section 5 NI Act as “an instrument in writing
containing an unconditional order, signed by the maker, directing a certain
person to pay a certain sum of money only to, or to the order of, a certain CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 9 of 20
person or to the bearer of the instrument.” The expression „negotiable
instrument‟ has been defined in Section 13 NI Act as meaning a “promissory
note, bill of exchange or cheque payable either to order or to bearer.”
15. What appears to be clear from the above definitions that an essential
feature of a cheque is that it has to be signed by the maker. This signing of
the cheque need not be by hand alone. After the amendment to Section 6 in
2002, the NI Act acknowledges that there can be an electronic cheque which
can be “generated, written and signed in a secure system.” Nevertheless, the
signing of the cheque is indeed an essential feature. But what about the other
material particulars? Can the word “cheque” occurring in Section 138 NI
Act include a blank cheque which is signed by the drawer but the material
particulars of which are left unfilled at the time it was handed over to the
payee? While on the one hand Section 138 NI Act which contemplates a „no
fault liability‟ has to be strictly construed as regard the basic ingredients
which have to be shown to exist, it requires examination of the other
provisions of the NI Act in order to ascertain if a cheque that was signed but
left blank can, if the material particulars are subsequently filled up and
presented for payment, still attract the same liability.
16. The counsel for the petitioner contended that a cheque which is signed
but left blank at the time of such signing, will be materially altered if it is
subsequently filled up without the consent of the drawer, which according to
him is what has happened in the present case. Such cheque would be void in
terms of Section 87 of the NI Act and therefore cannot be presented for
payment or honoured even if it is. Section 87 NI Act reads as under:CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 10 of 20
“Section 87 - Effect of material alteration
Any material alteration of a negotiable instrument
renders the same void as against anyone who is a party
thereto at the time of making such alteration and does not
consent thereto, unless it was made in order to carry out
the common intention of the original parties;
Alteration by indorsee.--And any such alteration, if made
by an indorsee, discharges his indorser from all liability
to him in respect of the consideration thereof.
The provisions of this section are subject to those of
sections 20, 49, 86 and 125.”
17. While it is correct that in terms of the above provision, any material
alteration to a cheque without the consent of the drawer unless it is made to
carry out the common intention of the original parties thereto renders the
cheque void, the expression “material alteration” has not been defined.
Significantly, Section 87 has been made subject to Sections 20, 49, 86 and
125 NI Act. These provisions help us to understand what are not considered
„material alterations‟ for the purpose of Section 87.
18. Section 20 NI Act talks of “inchoate stamped instruments” and states
that if a person signs and delivers a paper stamped in accordance with the
law and “either wholly blank or have written thereon an incomplete
negotiable instrument” such person thereby gives prima facie authority to
the holder thereof “to make or complete as the case may be upon it, a
negotiable instrument for any amount specified therein and not exceeding
the amount covered by the stamp.” Section 49 permits the holder of a
negotiable instrument endorsed in blank to fill up the said instrument “by
writing upon the endorsement, a direction to pay any other person as CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 11 of 20
endorsee and to complete the endorsement into a blank cheque, it makes it
clear that by doing that the holder does not thereby incurred the
responsibility of an endorser.” Likewise Section 86 states that where the
holder acquiesces in a qualified acceptance, or one limited to part of the sum
mentioned in the bill, or which substitutes a different place or time for
payment, or which, where the drawees are not partners, is not signed by all
the drawees, all previous parties whose consent has not been obtained to
such acceptance would stand discharged as against the holder and those
claiming under him, unless on notice given by the holder they assent to such
acceptance. Section 125 NI Act permits the holder of an uncrossed cheque
to cross it and that would not render the cheque invalid for the purposes of
presentation for payment. These provisions indicate that under the scheme of
the NI Act an incomplete cheque which is subsequently filled up as to the
name, date and amount is not rendered void only because it was so done
after the cheque was signed and delivered to the holder in due course.
19. The above provisions have to be read together with Section 118 NI Act
which sets out various presumptions as to negotiable instruments. The
presumption is of consideration, as to date, as to time of acceptance, as to
transfer, as to endorsement, as to stamp. The only exception to this is
provided in proviso to Section 118 which reads as under:
“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.”
20. A collective reading of the above provisions shows that even under the CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 12 of 20
scheme of the NI Act it is possible for the drawer of a cheque to give a blank
cheque signed by him to the payee and consent either impliedly or expressly
to the said cheque being filled up at a subsequent point in time and presented
for payment by the drawee. There is no provision in the NI Act which either
defines the difference in the handwriting or the ink pertaining to the material
particulars filled up in comparison with the signature thereon as constituting
a „material alteration‟ for the purposes of Section 87 NI Act. What however
is essential is that the cheque must have been signed by the drawer. If the
signature is altered or does not tally with the normal signature of the maker,
that would be a material alteration. Therefore as long as the cheque has been
signed by the drawer, the fact that the ink in which the name and figures are
written or the date is filled up is different from the ink of the signature is not
a material alteration for the purposes of Section 87 NI Act. .
21. The position in law has been explained in the judgment of the Division
Bench of the Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR
610 in the following words:
“In the instant case, signature is admitted. According to the
drawer of the cheque, amount and the name has been written not
by the drawer but by somebody else or by the payee and tried to
get it encashed. We are of the view, by putting the amount
and the name there is no material alteration on the cheque
under S. 87 of the Negotiable Instruments Act. In fact there
is no alteration but only adding the amount and the date.
There is no rule in banking business that payee’s name as
well as the amount should be written by drawer himself. In
the instant case Bank has never found that the cheque was
tampered with or forged or there is material alteration or that the CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 13 of 20
handwriting by which the payee’s name and the amount was
written was differed. The Bank was willing to honour the
cheques if sufficient funds were there in the account of the
drawer even if the payee’s name and the amount was written by
somebody else other than the holder of the account or the
drawer of the cheque. The mere fact that the payee’s name
and the amount shown are not in the handwriting of the
drawer does not invalidate the cheque. No law provides in
the case of cheques the entire body has to be written by the
drawer only. What is material is the signature of the drawer
and not the body of the instrument. Therefore when the
drawer has issued the cheque whether the entire body was
written by the drawer written beyond the instructions of the
drawer, whether the amount is due or not, those and such
matters are defences which drawer has to raise and prove it.
Therefore the mere fact that the payee’s name and the
amount shown in the cheque are in different handwriting is
not a reason for not honouring the cheque by the Bank.
Banks would normally see whether the instrument is that of
the drawer and the cheque has been signed by the drawer
himself. The burden is therefore entirely on the drawer of
the cheque to establish that the date, amount and the
payee’s name are written by somebody else without the
knowledge and consent of the drawer. In the instant case, the
drawer of the cheque has not discharged and burden. Apart
from the interested testimony of the drawer, no independent
evidence was adduced to discharge the burden.
7. Defendant had set up a case that the two cheques were taken
away from her establishment. Burden is on here to show that
the two cheques were taken away from her business premises.
Apart from the intested testimony of the defendant there is no
other independent evidence adduced to establish the story that
cheques were stolen from her business premises. Defend ant CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 14 of 20
has not cared to examine any of the employees of the
establishment. Counsel appearing for the defendant placed
considerable reliance on the decision of this Court in
Gandgadhara Panicker v. Haridasan 1989)2) KLT 730 and the
contended that the presumption under S. 118 of the Act would
arise only when there is a negotiable instrument which is
admitted to have been executed. It is pointed out that when the
fact of execution of the cheque itself is in dispute plaintiff has to
prove also passing of consideration. In other words, only when
due exe cution has been established presumption under S. 118
(a) can be raised. Reference was also made to the decision of
the Mysore High Court in Gurubasappa v. Rudriah AIR 1969
Mys. 269. We are of the view, in a given case cheque is issued
by the drawer in favour of the payee and the same is
dishonoured by the drawer’s Bank stating “funds insufficient”,
holder of the cheque is entitled to get the amount as reflected in
the cheque since the cheque is a negotiable instrument as per S.
118. We are of the view under S. 118 of the Act until the
contrary is proved presumption can be made that every
negotiable instrument was made for consideration. The
expression “until the contrary is proved” is relevant under S.
118 of the Negotiable Instrument Act. When the drawer of the
cheque did not find any infirmity in the cheque presented by the
payee presumption raised under S. 118 would apply unless the
contrary is proved by the drawer of the cheque. Therefore
mere fact that the payee’s name and the amount shown in
the cheque Is not in the handwriting of the drawer of the
cheque that by itself is not a ground to contend that they are
not validly issued or the cheques were not executed at all.”
(emphasis supplied)
22. Earlier in K.C. Devassia, St. Joseph’s Chity Fund, Kaithavana v.
Subramanian Potti II (1996) CCR 106 a learned Single Judge of the Kerala CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 15 of 20
High Court came to the same conclusion by observing in para 5 as under:
“The revision is filed against the order dismissing the
application filed by the accused for sending the disputed
cheque to a Hand Writing Expert and obtain his report.
The contention raised by the revision petitioner before
me is that a blank cheque was handed over to the
complainant as security for the transaction between the
two and the cheque was subsequently filled up by the
complainant. Counsel adds that filling up of the cheques
by the complainant will amount to a material alteration
coming within the purview of Section 87 of the Act.
When a blank cheque is given, the payee can fill it up
as he is empowered to do so under Section 20 of the
Act. Filling up of the blank cheque by the payee is
different from committing a material alteration. No
material alteration except the fact that the blank
cheque which was handed over by the accused to the
complainant was filled up by him is alleged to invoke
the provisions of Section 87. Counsel relied on the
decisions reported in Loonkaran Sethia v. Ivan E. John,
AIR 1977 SC 366, Subba Reddy v. Neelapareddi, AIR
1966 SC 267, Rattan Lal & Co. v. Assessing Authority
Patiala (AIR 1970 SC 1742) and Jayantilal Goel v.
Zubeda Khanun ( AIR 1986 AP 120) to contend that a
material alteration makes the instrument void and
unenforceable. I have no quarrel regarding the
proposition laid down in the above decisions. But as
already stated, a material alteration is different from
filling up a blank cheque by the payee.” (emphasis
supplied)
23. Recently this Court in Jaipal Singh Rana v. Swaraj Pal Singh (order
dated 22
nd
February, 2008 in Crl.M.C. 7821/2006) after discussing the law
on the topic, held that in a case involving the offence under Section 138 NI
Act, the Magistrate would be justified in declining to refer the cheques for
opinion of the handwriting expert where the signatures of the drawer on the
cheque were not disputed by the drawer. The situation is no different as far
as the present case is concerned. It may be added here that there may be
good reasons for not dishonouring a cheque merely because the ink of the
signature and ink of the material particulars is different or that the CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 16 of 20
handwriting is different. Numerous situations can be thought of where the
handwriting and the ink can differ. For instance when an entire cheque is
typed as to its material particulars, and the signature is in the handwriting of
the drawer, such cheque can hardly be said to be void for that reason.
24. This Court is unable to accept the contention of the petitioner that if the
signatures on the cheques are shown to be much prior to the date of filling
up of the material particulars that would probablise the defence of the
Petitioner. That the signature on the cheques is that of the petitioner is not
disputed. The Petitioner has even in his cross-examination in fact admitted
the fact that the cheques were issued by him and were handed over to the
complainant along with a covering letter. For the reasons explained it
matters little if the name of the payee, date and amount are filled up at a
subsequent point in time, subject of course to what is stated in the proviso to
Section 118 NI Act.
25. It is also not possible to agree with the contention that the determination
of the time when the signature was appended will somehow explain the fact
that the Petitioner has discharged the entire liability even before the cheque
was presented for payment. Here two factors need to be noticed. The first is
that although the Petitioner claims that he has closed his account in 2001
itself and that these blank cheques were handed over to the complainant
prior to that, he did not write to the complainant informing the complainant
that the account had been closed. Secondly, although he claimed that he has
discharged the liability, admittedly this is only an oral assertion of the
Petitioner and no receipts evidencing the payment of Rs.8 lakhs have been CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 17 of 20
produced in the court. It is pointed out by learned counsel for the
Respondent No.2 that at the stage of framing of charge, the Petitioner had
claimed before the trial court that he had with him the receipts evidencing
repayment. However, till date no such receipt has been produced. The
burden will be on the accused to show that in fact he has discharged the
liability even prior to the presentation of the cheques for payment. That
cannot be proved by the report of a handwriting expert. Section 139 NI Act
which raises a rebuttable presumption in this behalf, would require some
other positive evidence to be led by the accused to show that he has repaid
the amount to the complainant. In other words, merely because there is a
CFSL report that shows that the handwriting, the ink and the time of filling
the material particulars is different from that of the signatures, that by itself
will not go to prove that the accused has discharged his liability towards the
complainant even before the date of the presentation of the cheques. For
these reasons, there is no merit in the prayer of the petitioner for sending the
cheques to the CFSL for the opinion of the handwriting expert.
26.1 Since much reliance was placed on the judgment in Kalyani Baskar,
the facts in the said case may be noticed first. In para 2 it is stated that the
accused there had raised a preliminary objection that she “has not signed the
cheque or issued it to the complainant respondent.” This is a major
distinguishing feature of the said decision in its application to the facts of the
present case where the accused is not disputing his signatures on the
cheques. The observations in para 12 of the said decision have therefore to
be understood in the above factual context. Since an essential ingredient of
Section 138 is the signature of the drawer on the cheque, the trial court there CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 18 of 20
could not have denied the accused the chance to prove that defence. The
defence of denial of signatures naturally required the opinion of the
handwriting expert.
26.2 In para 12 of Kalyani Baskar, after noticing the above facts, the
Supreme Court held as under:
“12. Section 243(2) is clear that a Magistrate holding an
inquiry under CrPC in respect of an offence triable by
him does not exceed his powers under Section 243(2) if,
in the interest of justice, he directs to send the document
for enabling the same to be compared by a handwriting
expert because even in adopting this course, the purpose
is to enable the Magistrate to compare the disputed
signature or writing with the admitted writing or
signature of the accused and to reach his own conclusion
with the assistance of the expert. The appellant is
entitled to rebut the case of the respondent and if the
document viz. the cheque on which the respondent has
relied upon for initiating criminal proceedings against the
appellant would furnish good material for rebutting that
case, the Magistrate having declined to send the
document for the examination and opinion of the
handwriting expert has deprived the appellant of an
opportunity of rebutting it. The appellant cannot be
convicted without an opportunity being given to her to
present her evidence and if it is denied to her, there is no
fair trial. “Fair trial” included fair and proper
opportunities allowed by law to prove her innocence.
Adducing evidence in support of the defence is a
valuable right. Denial of that right means denial of fair
trial. It is essential that rules of procedure designed to
ensure justice should be scrupulously followed, and the
court should be jealous in seeing that there is no breach
of them. We have not been able to appreciate the view of
the learned Judge of the High Court that the petitioner
has filed application under Section 243 CrPC without
naming any person as witness or anything to be
summoned, which are to be sent for handwriting expert
for examination. As noticed above, Section 243(2) CrPC
refers to a stage when the prosecution closes its evidence
after examining the witnesses and the accused has
entered upon his defence. The appellant in this case
requests for sending the cheque in question, for the
opinion of the handwriting expert after the respondent
has closed her evidence, the Magistrate should have CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 19 of 20
granted such a request unless he thinks that the object of
the appellant is vexation or delaying the criminal
proceedings. In the circumstances, the order of the High
Court impugned in this appeal upholding the order of the
Magistrate is erroneous and not sustainable.”
26.3 It was submitted that since the Supreme Court has held that the
document should be sent for comparison by a handwriting expert to enable
the Magistrate to compare the “disputed signature or writing with the
admitted writing or signature of the accused….” not only the cheque but also
the letter ought to have been referred for opinion of the handwriting expert.
As already noticed, the accused in the above case was denying her signature
on the cheque. The question of referring any other document in the form of a
letter for the opinion of a handwriting expert clearly did not arise on the
facts of that case. Where the accused facing the trial for the offence under
Section 138 is disputing the signature on the cheque itself, then this is a
permissible defence within the scope of Section 138 NI Act. In fact an
accused facing trial for this offence has a very limited range of defences to
adopt. One is to show that the signature on the cheque is not that of the
accused. The other is to show that there is no outstanding towards payment
of the debt. While the former can be proved through the evidence of an
handwriting expert, the latter cannot possibly be proved in that manner. The
decision in Kalyani Baskar is not of assistance to the petitioner.
26.4 An extensive reference was made to the judgment of this Court in
BPDL Investments (Pvt.) Ltd.which arose in the context of a summary suit
in which an application for leave to defence was being considered. It was
submitted in that case that two undated cheques had been issued by the CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 20 of 20
defendant in favour of the plaintiff and before it was presented the date was
filled up by the plaintiff and that this constituted a material alteration.
Following the decision of the Andhra Pradesh High Court in Allampati
Subba Reddy v. Neelapareddi AIR 1966 AP 267, this Court held that there
was no consent of the defendant to the alteration of the date and therefore in
terms of Section 87 of the NI Act it was a material alteration. In the first
place, this was not a case arising under Section 138 NI Act at all. Moreover,
while adverting to Section 87 of the Act, the Court did not notice that the
said Section was subject to Sections 20, 49, 86 and 125 NI Act. These
provisions permit the holder in due course of a negotiable instrument to fill
up the material particulars without the said instrument being rendered void.
Section 87 contemplates an otherwise complete cheque which when
presented for payment would be able to be honoured except for the material
alteration. For instance there is an overwriting or cutting in the material
particulars which has not been initialed by the drawer, then that would
prevent the bank from passing the cheque for clearance. Therefore, this
decision is also not of relevance to the facts on hand.
27. For all the aforementioned reasons, this Court finds no infirmity in the
order of the learned MM declining to refer to the cheques for the opinion of
the handwriting expert. The petitions are accordingly dismissed but in the
circumstances with no order as to costs. The pending applications are
disposed of.
S. MURALIDHAR, J.
MARCH 13, 2008
dn
