Babu vs Vinayagam

B. Rajendran, J.—This Criminal Revision Case is filed by the petitioner aggrieved by the order dated 7.3.2012 passed in C.M.P. No. 853

of 2012 in C.C. No. 120 of 2011 by which the petition filed by the petitioner u/s 45 of Indian Evidence Act was dismissed. The

respondent/complainant has filed C.C. No. 120 of 2011 u/s 138 of the Negotiable Instruments Act contending that on 30.10.2010 the accused

borrowed a sum of Rs. 35,000/- and issued a cheque No. 600975 dated 29.11.2010 drawn on ICICI Bank, Tiruvannamalai Branch as well as a

promissory note. Further, on 20.11.2010, the accused borrowed further sum of Rs. 50,000/- for which he issued a cheque No. 057200 dated

11.12.2010 drawn on ICICI Bank, Tiruvannamalai Branch as welt as a promissory note. Thus, the accused had borrowed a total sum of Rs.

35,000/-. On the request of the accused, the complainant presented the cheques for collection, but both the cheques were dishonoured on the

ground that the account has been closed long back. After issuing a statutory notice on 29.12.2010 to the accused, the complainant filed the

complaint u/s 138 of the Negotiable Instruments Act.

Pending the calendar case, the petitioner/accused filed C.M.P. No. 853 of 2012 u/s 45 of the Indian Evidence Act praying to send the Cheques

for comparison to ascertain as to (i) whether the writings in the two cheques as well as the promissory notes have been written by one and the

same person (ii) whether the ink by which the cheques were signed in both the cheques as well as the writings thereon as well as the promissory

note have been written by one and the same ink and (iii) to ascertain the age of the ink. According to the petitioner/accused, even though he had

signed the cheques as well as the promissory notes, the contents thereon have been filled by two different persons in the two cheques as well as

promissory notes and therefore, it has to be ascertained as to who was the person who had filled the cheques as well as the promissory notes,

through an expert. This said application filed by the petitioner was dismissed by the Court below against which the present Criminal Revision Case

is filed.

The learned counsel appearing for the petitioner would contend that as per the version of the respondent/complainant, the contents in both the

cheques as well as the promissory note were written by him, whereas, the writings in both the cheque and the promissory note differ and therefore

it has to be ascertained as to whether it was the petitioner who had filled up both the cheques as well as the promissory note or by some other

person. This is very significant to prove that the petitioner/accused had issued the cheques in blank, however, the Court below erroneously

dismissed the petition without assigning any valid reasons.

On the other hand, the learned counsel for the respondent/complainant would contend that the petitioner had admitted the issuance of the

cheques as well as the promissory note and the execution of the same. Therefore, it is unnecessary for the Court below to direct the forensic

experts to find out as to who was the person who filled up the cheques and promissory notes. Further, the petitioner never denied the execution of

the cheques or his signature in the cheques as well as the promissory note. As per Section 20 of the Negotiable Instruments Act, even a holder in

due course can fill up the cheque and it is legally permissible. When the petitioner had admitted the entrust ment of the cheques as well as

promissory notes, it is not open to him to file the petition u/s 45 of the Indian Evidence Act to compare the writings in the cheque and the

promissory note. Therefore, the Court below is right in rejecting such a prayer sought for by the petitioner and he prayed for dismissal of the

Criminal Revision Case.

I heard the counsel for both sides and perused the materials placed on record. According to the petitioner/accused, he issued the cheques in

blank as a collateral security for the due payment of the loan amount received by him from the respondent/complainant and also signed the

promissory notes. When the documents have been presented in the Court, he could find two different writings in both the cheques as well as

promissory notes by using two different types of ink. Therefore, he would contend that the cheques as well as promissory notes have been filled up

by some other person other than the respondent/complainant. Thus, in order to find out as to who was the person who filled the cheques as well as

promissory notes, it is just and necessary to send the cheques as well as promissory notes to forensic sciences authorities especially when the

defence of the petitioner is that he had issued the cheques in blank. Thus, the only point raised by the petitioner is that even though the cheques as

well as promissory notes were signed by him, the contents thereof have not been filled up by him and unless this is established, the petitioner could

not prove his defence that the cheques were issued in blank. Further, there are discrepancies in the filling up of the cheques and promissory notes

as there are two different writings with two different ink. According to the petitioner, the cheque was entrusted to the respondent as a security for

the due repayment of loan, but it was misused by him. As per Section 73 of the Indian Evidence Act, the Court itself can compare the admitted

and disputed signature, but it is better to obtain the opinion of the forensic experts.

When we analyse the evidence available on record, the petitioner/accused had categorically admitted the entrustment of the cheque as well as

promissory notes, signing or execution of the cheques and the promissory notes in favour of the respondent/complainant. The transaction between

the complainant and the accused is not seriously disputed by the accused. The only contention of the petitioner is that the cheques as well as the

promissory notes have been signed by him in blank as a collateral security. Therefore, it is very clear that the petitioner admits the issuance,

entrustment or execution of the cheques as well as promissory note in question to the respondent/complainant.

Section 20 of the Negotiable Instruments Act deals with the right of the holder in due course, which reads as follows:

Inchoate stamped Instruments:-Where one person signs and delivers to another a paper stamped in accordance with the law relating to

negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he 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. The person so signing shall be liable upon such instrument, in the capacity in which he

signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the

person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.

As per Section 20 of the Negotiable Instruments Act, a holder in due course is authorised or empowered to fill up an instrument so as to make it

a negotiable instrument. In this case, the petitioner had admitted the entrustment of the cheques as well as promissory notes in blank and therefore,

the respondent/complainant as a holder in due course, is entitled to fill up the cheques and that cannot be questioned by the petitioner/accused.

Therefore, the contention of the petitioner that there are two different inks by which the cheques and promissory notes have been filled up will not

in any way useful for the petitioner for the purpose of his defence in the proceedings initiated against him u/s 138 of the Negotiable Instruments

Act. Even in the reply notice, the petitioner/accused admitted the entrustment of the cheques as well as promissory notes but only pleaded that he

intend to repay the cheque amount within a short time. Even in the cross-examination of PW1, a suggestion was made only for repayment of the

cheque amount. In this connection, the learned counsel for the petitioner/accused relied on the decision T. Nagappa v. Y.R. Muralidhar Appeal

(Crl) No. 707 of 2008 dated 24.4.2008 wherein the Honourable Supreme Court held that as per Section 20 of the Negotiable Instruments Act

only a prima facie right had been conferred upon the holder of the negotiable instruments Act and the same is subject to the conditions mentioned

therein. Further, it was held that in the interest of justice, the accused must be given an opportunity to rebut the presumption as well as the case put

forth by the complainant. The facts of the case involved in the decision cited supra are different and they cannot be made applicable to the facts of

this case. In this case, the petitioner admitted the entrustment, execution or issuance of the cheques as well as promissory notes and he only

disputes that the writings made in the instruments namely cheques and promissory notes differ and they were written in two different inks. While so,

the decision relied on by the counsel for the petitioner do not lend support to his case.

The Court below, relying on the unreported decision of this Court in S. Gopal v. D. Balachandran Crl. R.C. No. 1658 of 2007 dated

22.1.2008 held that if a drawer of a cheque gives authority to the payee or holder in due course or a stranger, for that matter to fill up the cheque

signed by him, such an instrument also is valid in the eye of law. There is no bar for the drawer of a cheque to give authority to a third person to fill

up the cheque signed by him for the purpose of negotiating the same. Thus, by relying on the decision of this Court mentioned supra, the trial Court

came to the conclusion that sending the cheques in question as well as the promissory notes to ascertain the person who wrote the contents thereof

is unnecessary. Considering the facts and circumstances of the case, I am of the view that the Court below has arrived at such a conclusion

correctly and I do not find any reason to interfere with such a finding rendered by the Court below.

As far as comparison of age of the ink sought for by the petitioner/accused by the forensic experts, such a prayer cannot be countenanced in

view of the decision rendered by this Court in R. Jagadeesan Vs. N. Ayyasamy and Another, , dated 18.7.2012 wherein it was held that the

facility to ascertain the age of the ink of the signatures found in the cheques, is not available in Tamil Nadu and that earlier, the matters have been

referred to Andhra Pradesh, in fact, now, a report has been sent by the Assistant Director, Central Forensic Laboratory, Andhra Pradesh to the

effect that as of now, such facility is not available in India, therefore, there is no possibility to ascertain the age of the ink of the signatures found in

the cheques.

The Court below pointed out that when the petitioner admitted his signature in the cheques as well as the promissory note, there is no necessity

to send the cheques in question to forensic experts for comparison. Even in the reply given by the petitioner to the statutory notice sent by the

respondent or during the course of trial, the petitioner/accused never disputed the execution or entrustment or issuance of the cheques and

promissory notes in favour of the respondent/complainant and therefore, the Court below is right in dismissing the petition filed by the petitioner u/s

45 of the Indian Evidence Act. I am fully in agreement with the conclusion arrived at by the Court below and I do not find any reason to interfere

with the same. In the result, the Criminal Revision Case is dismissed confirming the order dated 7.3.2012 made in C.M.P. No. 853 of 2012 in

C.C. No. 120 of 2011 on the file of the Judicial Magistrate (Fast Track Court), Tiruvannamalai. Consequently, connected miscellaneous petition is

closed.