2013 (2) TMI 950 - HC - Indian Laws

Cheque material alteration and handwriting expert examination affirmed for contested figure alteration; trial court order upheld and trial expedited

Whether a disputed cheque bears a material alteration and whether a handwriting/forensic examination is permissible were the central questions. The court ... Material alteration of a negotiable instrument - effect of material alteration - sending disputed document for expert examination under Section 45 of the Evidence Act - presumption under Section 139 of the Negotiable Instruments Act - fair trial and right to produce expert evidenceSending disputed document for expert examination under Section 45 of the Evidence Act - fair trial and right to produce expert evidence - Validity of the Trial Court's order directing Ex.P1 (the cheque) to be sent to the Handwriting and Forensic Scientific Department for expert examination - HELD THAT: - The High Court upheld the Trial Court's exercise of discretion in directing that Ex.P1 be sent for expert opinion. The Court observed that the accused's request to have the cheque examined for alterations and for comparison with admitted handwriting engages the accused's right to a fair trial and to exhaust available defenses. Reliance was placed on authorities recognising the Magistrate's power to obtain expert assistance to compare disputed and admitted writings and on the need to guard against premature denial of defence evidence unless the application is vexatious or merely intended to delay. Having regard to the specific plea made by the Respondent/Accused that the figure '5' was added before '50,000' and other blanks were completed by the complainant, the Court found no infirmity or illegality in the Trial Court's order allowing expert examination and directing that the questions sought be investigated by the Handwriting and Forensic Scientific Department. [Paras 36, 37]The order dated 3.7.2012 directing Ex.P1 to be sent for expert handwriting and forensic examination is confirmed.Material alteration of a negotiable instrument - effect of material alteration - presumption under Section 139 of the Negotiable Instruments Act - Whether the plea of material alteration in Ex.P1-Cheque renders the instrument void and whether that plea requires investigation at trial - HELD THAT: - The Court reiterated the settled principle that a material alteration in a negotiable instrument (one which changes its legal character or the sum payable) can render the instrument void against a party who did not consent to the alteration. However, the High Court did not decide the factual question on merits; instead it held that because the Respondent/Accused specifically alleged that the figure '50,000' was altered to '5,50,000' and other blanks were filled up by the complainant, the plea amounts to a legitimate defence which ought to be investigated. Consequently, the Court endorsed the Trial Court's direction to obtain expert opinion to determine whether the alleged material alteration occurred, and observed that the complainant bears the onus to prove that any alteration was not improperly made. The Court left the ultimate determination of whether the instrument is rendered void and whether criminal prosecution can be sustained to the Trial Court after consideration of expert reports and trial evidence. [Paras 13, 24, 25, 36]The plea of material alteration is a substantial defence requiring expert enquiry; the factual determination whether the cheque is void on account of material alteration is to be considered and decided at trial after obtaining the expert report.Trial expedition and court directions - Direction for completion of trial and obtaining expert opinion within a stipulated period - HELD THAT: - Recognising that the main criminal case was pending at a partheard stage, the High Court directed the Trial Court to obtain the expert opinion diligently and ordered completion of the full trial in C.C. No.239 of 2012 within five months from receipt of the copy of the High Court's order. The Court emphasised that expert assistance should be procured so as to prevent miscarriage of justice and cautioned against undue delay, while preserving parties' rights to raise all factual and legal pleas during the trial. [Paras 37, 38]Trial Court directed to obtain the expert opinion diligently and to complete the trial within five months.Final Conclusion: Criminal Revision Petition dismissed; the Trial Court's order dated 3.7.2012 directing Ex.P1 (the cheque) to be sent for handwriting and forensic examination is confirmed. The plea of material alteration was held to be a substantial defence warranting expert enquiry and factual determination at trial; the Trial Court is directed to obtain the expert report and conclude the trial within five months. Issues: Whether the Trial Court was justified in directing that Ex.P1 (the cheque) be sent for handwriting and forensic examination to ascertain whether the figure '5' was added before the figure of 70,000/- (i.e., whether there is material alteration), and whether that order should be set aside in the Criminal Revision Petition.Analysis: The Court examined the legal framework governing disputed writings and negotiable instruments: Section 45 of the Indian Evidence Act permits courts to obtain expert opinion where such opinion will assist in determining disputed handwriting; Section 87 of the Negotiable Instruments Act declares that material alteration of a negotiable instrument renders it void against parties who did not consent to the alteration; Sections 118, 139 and 138 of the Negotiable Instruments Act address holder in due course status and statutory presumptions relevant to criminal liability under Section 138. Precedents establish that where a defence of material alteration is reasonably raised and expert examination could assist in resolving the controversy, the accused is entitled to have the document examined, subject to the court guarding against vexatious delay. The Court reviewed authorities both for and against sending disputed documents for expert opinion, considered technical limitations (including limits on determining age of ink), and applied the principles that (i) the plaintiff bears the onus to show alteration was not improperly made, and (ii) an accused must be afforded a fair trial which may include expert comparison under Section 45 and Section 243 Cr.P.C. Given the respondent/accused's specific plea that the amount figure was altered from 70,000/- to 5,50,000/- (i.e., addition of a '5') and that blanks/words were filled by the complainant, the Court found that the plea of material alteration raised a substantive issue requiring expert examination. The Trial Court's decision to obtain a handwriting and forensic report on whether the '5' was added and whether the figures are of different types is a reasoned exercise of judicial discretion to enable proper adjudication at trial.Conclusion: The Criminal Revision Petition is dismissed and the order dated 3.7.2012 of the Trial Court directing Ex.P1 to be sent for handwriting and forensic examination is confirmed; the Trial Court is directed to obtain the expert opinion and complete the trial within the period fixed by this Court. Ratio Decidendi: Where a bona fide, substantively pleaded defence of material alteration is raised in relation to a negotiable instrument, the court may, in the interests of fair trial and justice, order examination by handwriting/forensic experts under Section 45 of the Evidence Act and related provisions; material alteration, if proved and not consented to, renders the instrument void as against the party not consenting.