2022 (10) TMI 4 - HC - Indian Laws

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 ... Dishonor of Cheque - existence of legally enforceable debt or not - burden to prove - rebuttal of presumption - Section 139 of the Negotiable Instrument Act - HELD THAT:- Section 139 of the Negotiable Instrument Act raises a rebuttable presumption that the holder of a cheque received the cheque for the discharge of any debt or other liability. Section 139 speaks of presumption of law. It is needless to say that such presumption is rebuttable and onus lies on the drawer to rebut it by adducing cogent evidence to the contrary - It is held by the Hon’ble Supreme Court in BIR SINGH VERSUS MUKESH KUMAR [2019 (2) TMI 547 - SUPREME COURT] that the presumption under Section 139 of the Negotiable Instruments Act is not in conflict with human right of presumption of innocence of accused which prosecution is required to dislodge by proving its case against the accused beyond reasonable doubt. Thus primary burden is on the prosecution to prove the ingredients of offence under Section 138 of the Negotiable Instrument Act beyond reasonable doubt. Only when the complainant discharges his/her burden, onus shifts upon the accused to rebut the presumption available in favour of the complainant under Section 138 of the Negotiable Instruments Act - The witness on behalf of the complainant unequivocally stated that the said name of Soumen is appearing in Exhibit-2 which was issued is not related to Chandra Gold. At the same time, PW1 stated in his cross examination that the signature of the accused/petitioner appears on the left side bottom of Exhibit-2. During cross examination of the accused three numbers of bills were confronted on behalf of the complainant with whom he admitted the signature on the said bills. This Court is not unmindful to note the provision contained in Section 20 of the Negotiable Instruments Act. However, when the complainant himself comes up with a document to establish the existing debt or liability, the question of raising presumption under Section 139 does not arise because in such a case the complainant does not depend upon the statutory presumption - where the complainant comes up with a document claiming to be executed by the accused confirming his existing debt or liability, complainant is under obligation to prove the said document beyond any reasonable doubt. When execution of the said document is disputed by the accused and the accused admitted his signature on some other documents produced by the complainant during his cross examination, court is required to obtain expert opinion comparing the said two documents for just decision of the case. The complaint cannot raise any objection pleading, that statutory presumption under Section 139 is available in favour of the holder of the cheque. The instant revision is allowed. 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.