Chitta Ranjan Das vs Sunakar Maharana

S. Pujahari, JÂ

The petitioner seeks to invoke the power of this Court under Section 482 of Cr.P.C. to quash the order dated 09.02.2009 passed by the learned

J.M.F.C., Bhubaneswar in I.C.C. No.3461 of 2005 rejecting the petition filed by the petitioner to send the disputed cheques to handwriting expert for

opinion.

The petitioner is the accused in I.C.C. No.3461 of 2005, a proceeding under Section 138 of the Negotiable of Instruments Act, (for short “the

N.I. Actâ€). As it appears from the impugned order, after closure of evidence, the accused-petitioner filed a petition before the trial Court for sending

the cheques forming subject matter of the case, to an Handwriting Expert under Section 45 of the Evidence Act to give opinion as to whether or not

the accused filled the contents of those cheques in his own handwriting. The plea of the accused-petitioner, as it transpires, is that he did not fill in the

cheques, and his petition under Section 45 of the Evidence Act was occasioned due to some discrepancy / inconsistency apparent in the evidence

adduced by the complainant in that respect. The learned trial Court vide the impugned order rejected the petition of the accused for the reason, inter-

alia, that the cheques in question were admitted into evidence without any objection from the side of the defence, and the accused also did not dispute

his signature on those cheques.

Heard the learned counsel for the accused-petitioner and also the learned counsel appearing for the State-opposite party no.1. None appeared on

behalf of the complainant-opposite party no.2 when the matter was taken up for hearing through V.C.

It is the contention of the learned counsel for the petitioner that the learned trial Court by rejecting the petition under Section 45 of the Evidence Act

has denied the right of the defence to produce rebuttal evidence, and thereby has exposed the accused-petitioner to gross prejudice. According to him,

the report of the Handwriting Expert would substantiate the defence plea that the petitioner had not issued the cheques in question.

A negotiable instrument is a signed document that promises a sum of payment to a specified person or the assignee. Cheque is a negotiable

instrument. A document becomes executed when it is signed by the author, and a cheque is drawn when it is signed by the account holder. The

drawer of such cheque becomes liable to be prosecuted under Section 138 of the N.I. Act under certain circumstances and subject to fulfillment of

certain conditions as stipulated under the N.I. Act. Thus, what that is material is, whether the cheque was signed / drawn by the accused or not.

When there is no dispute that the accused signed the cheque, the question as to whether or not the other contents of the cheques were filled in by the

drawer himself or not, is of least significance. In the case at hand, the accused-petitioner does not deny to have signed the cheques. Hence, no fault

can be found with the learned S.D.J.M. in not allowing the prayer of the accused under Section 45 of the Evidence Act for seeking an examination of

the cheques by an handwriting as to the contents of the cheques. This Court does not feel, the impugned order has caused any prejudice to the

accused-petitioner. Reliance in this regard can be placed on a decision of the Apex Court in the case of Bir Singh vrs. Mukesh Kumar, reported in

(2019) 4 SCC 197, wherein the Apex Court in paragraph-33 have held as follows:-

“33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person

who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment

of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the

drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.â€​

Hence, this CRLMC stands dismissed.

As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available

in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s

Notice No.4587, dated 25th March, 2020 as modified by Court’s Notice No.4798, dated 15th April, 2021.