Court allows revision, deems rejection of handwriting examination application illegal, orders expert comparison, shifts burden of proof.

The court found the order rejecting the application for handwriting examination to be illegal and irregular. The revision was allowed, setting aside the order and directing the documents to be sent to a handwriting expert for comparison. The case outcome favored the petitioner, emphasizing the need for expert opinion in proving signature authenticity and shifting the burden of proof to the complainant to establish document authenticity beyond reasonable doubt.

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Issues Involved:
1. Rejection of the application for examination of a "questioned document" by a handwriting expert.
2. Presumption under Section 139 of the Negotiable Instruments Act.
3. Burden of proof and the role of expert opinion in proving the authenticity of signatures.

Detailed Analysis:

1. Rejection of the Application for Examination of a "Questioned Document" by a Handwriting Expert:

The petitioner, accused in a criminal complaint under Section 138 of the Negotiable Instruments Act, challenged the order dated 27th September 2021, where the learned Metropolitan Magistrate, 5th Court at Calcutta, rejected the petitioner's application to examine Exhibit-2 by a handwriting expert. The petitioner argued that the bill (Exhibit-2) was forged and fabricated, and did not bear his signature, which was crucial to proving his defense that he did not owe the alleged debt.

2. Presumption under Section 139 of the Negotiable Instruments Act:

The opposite party filed a complaint alleging that the accused issued a cheque for Rs.60,59,387/- in discharge of his liability, which was dishonored. The complainant relied on Section 139 of the Negotiable Instruments Act, which raises a presumption that the cheque was issued for the discharge of debt or liability. The petitioner admitted issuing a blank signed cheque as security but denied the debt, claiming the cheque was misused.

3. Burden of Proof and the Role of Expert Opinion in Proving the Authenticity of Signatures:

The court noted that Section 139 raises a rebuttable presumption, and the burden shifts to the accused to disprove the presumption by cogent evidence. The complainant presented Exhibit-2 to prove the debt, but the petitioner disputed its authenticity. The court emphasized that the complainant must prove the document beyond reasonable doubt when the accused denies the signature. Sections 45, 47, 67, and 73 of the Evidence Act were discussed, highlighting the need for expert opinion to compare disputed signatures with admitted ones.

The court referred to precedents, including the Hon'ble Supreme Court's caution against judges comparing signatures themselves and the necessity of expert opinion for a just decision. The court concluded that the complainant's reliance on Exhibit-2 required proving its authenticity, and the petitioner's denial warranted an expert examination.

Conclusion:

The court found the impugned order rejecting the application for handwriting examination to be inherently illegal and materially irregular. The revision was allowed, and the order dated 27th September 2021 was set aside. The learned Magistrate was directed to send Exhibit-2 and Exhibits-7, 8, and 9 to a handwriting expert for comparison and to decide the case based on the expert's opinion. The parties were permitted to act on the server copy of the order.

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