SRI. L.T. JAYARAMU vs KUM. VIDYA T

Heard the learned counsel for the petitioner and the learned counsel for the respondent in detail. Perused the records.

The records disclose that the respondent filed a private complaint in PCR.No.18458/2016 against the petitioner herein for the offence punishable under Sections 138 and 142 of N.I. Act alleging the issuance of a cheque bearing No.863005 dated 12.7.2016 for Rs.20,00,000/- drawn on M/s. Canara Bank, Girinagar Branch, Bengaluru, which came to be dishonoured with an endorsement "Funds Insufficient". The complainant after duly complying all the requirements under Section 138 of N.I. Act i.e., by issuing notice to the petitioner and thereafter, within time lodged a complaint. The accused by virtue of the summons appeared before the Court and contested the proceedings. Of course, the notice issued by the complainant has not been replied by the accused. However, he has come up with a specific defence during the course of evidence before the Court below that, he has not issued any cheque in favour of the complainant and that, the said cheque was subjected to theft and the signature found on the cheque was not that of the accused.

Having taken that defence and after conclusion of the evidence, it appears the petitioner has made an application under Section 45 of the Indian Evidence Act seeking indulgence of the Court to refer the said cheque to handwriting expert, in order to ascertain the genuineness of the signature on the disputed cheque. The said application was seriously contested by the complainant by contending various circumstances, as to how the Court has to believe that the said cheque bears the signature of the complainant. The complainant's counsel has drawn the attention of the Court to Section 73 of the Indian Evidence Act and requested the Court to compare the admitted signatures of the accused on the various documents with that of the disputed signature on the cheque. The said application was heard and the learned Magistrate by giving reasons has dismissed the said application vide order dated 14.09.2017 relying upon various decisions cited by both the parties. Being aggrieved by the said order the petitioner has preferred a revision petition before the Sessions Court and thereafter withdrawn the same and filed this petition before this Court. Perhaps the petitioner has felt that the revision petition was not maintainable in view of the bar contained under Section 397(2) of Cr.P.C. Be that as it may, the said remedy was also exhausted and the petitioner is before this Court virtually challenging the order passed by the learned Magistrate.

The learned Magistrate has rejected the application mainly relying upon a decision in H.M. SATISH Vs. B.N. ASHOK reported in ILR 2007 KAR 936 wherein this Court has observed that "the best witness with regard to the signature on the cheque would be the Bank Manager, who issues the memo with reference to the dishonour of the cheque." In similar fashion the learned Magistrate has relied upon the various decisions and found that the signature on the cheque does not warrant handwriting expert's opinion, and held that the Court can draw inference on the basis of the other material on record and hence dismissed the application of the accused.

The learned counsel for the petitioner strenuously contends that the consistent stand taken by the accused through out during the course of evidence as well as the defense evidence adduced, clearly discloses that he is firm in his stand that, the signature on the cheque was not that of the accused. In not allowing the application by providing opportunity to the accused to exhaust all the remedies available to him to prove his innocence, will lead to severe consequences that, the accused will be convicted on the basis of the other material. The signature of a particular person has to be tested if it is denied by him, by an authenticated expert's report, based on such report the Court can rely upon other circumstances of the case. No doubt even if the opinion of an expert is submitted to the Court, the Court has the discretion either to accept it or

not. The Court for its own reasons can even differ from the expert's opinion. The authority vests with the Court to consider the expert's opinion in a given case, along with other circumstances of the case. Nevertheless in the facts and circumstances of each case, the accused has to be provided opportunity to exhaust the remedy to prove his innocence. Providing opportunity to the accused to prove his innocence is of paramount consideration in adhering to the principles of natural justice, if an opportunity was not provided to the accused and if it is denied, it virtually prejudices the case of the accused, it is advised such opportunity shall be provided to the accused. In this back ground, the Court also can see whether there are strong circumstances made by the accused, in order to refer the disputed cheque to the handwriting expert, if it is deliberate action of the accused, then such application should not be entertained by the Court. If the Court finds deliberate action on the part of the accused that, only with an intention to drag on the proceedings, then the Court can initiate suitable punishment. If the act of the accused is otherwise and the accused has got prima facie defence and it is consistent through out, then the Court should normally adhere to the principles of natural justice to provide opportunity to the accused, much less injustice would be caused to the other side. It is also worth to note the provisions of Section 138 of N.I. Act, which empowers the Court to impose penalty double the cheque amount, if the Court considers that the act of the accused through out the proceedings is deliberate and the accused has made all attempts to defeat the rights of the complainant. The Court can consider the circumstances, if it is found that the accused has behaved malafidely then the Court can impose the penalty double the cheque amount. 5. Bearing in mind the above said provisions, now let me consider the circumstances, in this particular case, whether it demands, the Court to refer the disputed cheque for examination by the expert.

In order to ascertain the conduct of the parties, this Court has directed the petitioner's counsel to produce the depositions of the witnesses examined in this case. The complainant was examined as PW.1 during the course of examination-in-chief by eliciting that the cheque has been issued by the accused. During the course of cross-examination, it is observed that, specific stand has been taken at paragraph No.5, it is suggested that the said cheque was not issued by the accused and the signature found on the cheque was not that of the accused and that, the said cheque was stolen and the cheque has been mis-used by forging the same. Even in the defence evidence of DW.1, the accused at paragraph 3 has reiterated the same defence and he has also narrated that he has given a police complaint in this regard, also.

Be that as it may, in this particular case, the Bank Manager (DW.3), who has issued the endorsement of dishonour of cheque has deposed before the Court that the disputed cheque was presented to the said Bank and the endorsement was issued with regard to cheque, at paragraph 2 he has specifically stated that if there is no amount in the Bank, so as to satisfy the cheque, normally the Bank will not look into the signatures of the katedar, they will only give endorsement as "Insufficient funds" with regard to the katedar, but they will not give any report with regard to the signature. It is also stated, subsequent to dishonour of the cheque, a letter has been given to the Bank by the accused that if any cheque is presented pertaining to him, the same should not be honoured, though the said letter was subsequent, but the fact remains that the Manager has not examined the signatures of the accused on the cheque in dispute and no opinion has been expressed with regard to the signature on the cheque.

Therefore, under the facts and circumstances of the case, the only remedy left open to the Court is to secure the opinion of the expert or compare the signature in terms of the provisions of Section 73 of the N.I. Act. Normally the Court will not venture to compare the signature of the accused on the cheque but seeks indulgence of an expert to examine the signature or examine handwriting expert, which is specifically disputed. Therefore, looking to the above facts and circumstances of the case, this Court finds that it is a fit case where the Court ought to have referred the cheque for examination by an expert.

Learned counsel for the respondent has relied upon the decision in L.C. GOYAL Vs. SURESH JOSHI (MRS) AND OTHERS reported in

(1999) 3 SUPREME COURT CASES 376 and drew the attention of Court to paragraph 8 wherein the Apex Court considering the facts and circumstances of that particular case and with reference to the opinion of the Bank with regard to the signature with reference to the specimen signature of the accused the Court can draw inference with regard to the signature of the accused on the cheque. Therefore, it clearly goes to show that there cannot be any precedent on facts. The Court has to consider the facts and circumstances of each case to come to such a conclusion, it is seen no legal position is laid down, but it is a case distinguished by the Apex Court. Therefore, the Court has to apply judicious mind to a particular case to find out whether there are any grounds available to the accused to prove his innocence. Ultimately the accused has to be presumed as an innocent, until the guilt is proved. Under Section 139 of the N.I. Act. particularly, if once the signature on the cheque is held to be that of the accused, then the Court has to presume all the other circumstances, with regard to the existence of the previous debt and also the issuance of the cheque and dishonour etc. So therefore, the proof or non proof of the signature on the cheque is the harbinger and it is decisive so far as the case under Section 138 of N.I. Act is concerned. Therefore, in my opinion, the accused has to be provided fullest opportunity to prove his innocence before the Court.

Therefore, for the above said reasons, I find on facts it is a fit case where the cheque has to be referred to the handwriting expert for examination. Hence I proceed to pass the following :-

ORDER

Petition is allowed. The order passed by the learned Magistrate dated 14.9.2017 in C.C.No.18458/2016 is hereby set aside. Consequently the learned Magistrate is hereby directed to refer the said disputed cheque to the handwriting expert after hearing both the parties and to decide to which laboratory the said cheque has to be sent for examination and thereafter the Magistrate has to pass appropriate order to refer the matter to the competent laboratory for examination and report to the Court.

The apprehension of the learned counsel for the respondent that, there may be delay in submitting the report to the Court by the concerned laboratory can be redressed by the learned Magistrate monitoring the same by fixing time limit to the concerned authorities and secure the report expeditiously and dispose of the matter on merits.