Kerala High Court
Bindu vs Sreekantan Nair on 13 December, 2006
Equivalent citations: III(2007)BC703
Author: R. Basant
Bench: R. Basant
ORDER R. Basant, J.
1. The petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act. The signature in the cheque is not disputed. Fairly specific contention appears to have been raised as early as in the reply to the notice of demand that the cheque was handed over as a blank signed cheque as security when the husband of the petitioner/accused availed a loan of Rs. 1.75 lakh from the complainant. It is the fairly specific contention of the petitioner/accused that the cheque was issued as a blank signed cheque as security for due repayment of the said amount of Rs. 1.75 lakh. It is the further specific contention that the other entries in the cheque were not made by the accused, but by the complainant that cheque is being misutilised to stake a totally false and fanciful claim for Rs. 6.25 lakh, it was contended.
2. Trial has commenced. The complainant's evidence is already over. At the stage of defence evidence the petitioner filed an application that the cheque may be sent to the expert. That prayer was rejected by the learned Magistrate by placing reliance on the decision in Francis v. Pradeep IV . Inasmuch as the signature is admitted it is not necessary to send Ext. P1 cheque for expert opinion, it was held. The precise observations which are relevant which appear in paragraph 3 of the impugned order are as follows:
In the instant case/the accused admitted the signature in Ext. P1 and hence I hold that it is not necessary to send Ext. P1 cheque for expert opinion and the accused is at liberty to adduce other evidence to establish that the complainant has no transaction with the accused.
3. The learned Counsel for the petitioner submits that the learned Magistrate did not correctly appreciate the dictum in Francis (supra). It is not the law that if the signature in the cheque is admitted such a cheque need never be sent to the expert. Here the accused had taken a very specific stand that except the signature, the other entries are not written in her hand. I have been taken through the cross-examination of the complainant/PW1 wherein the complainant is shown to have specifically asserted that all the writings were made and the signature were affixed by the petitioner in the presence of the complainant,
4. It is true that it has often been held that admission of signature in the cheque is of crucial and vital significance. But that observation cannot be understood to mean that admission of signature is equivalent or synonymous with admission of execution. Admission of signature does go a long way in the attempt to prove execution of a document. But the nice legal distinction between admission of signature and admission of execution must always be borne in mind. Admission of signature may in an appropriate case persuade the Court to draw permissive presumptions of fact under Section 114 of the Evidence Act. But certainly the right of the accused to contend that a blank signed cheque was misutilised by the payee cannot be taken away by such mere admission of signature. Ultimately when the evidence is appreciated the Court shall have to consider whether admission of signature coupled with the other circumstances is sufficient to prove execution. But the right of the accused is to show that only the signature is his/hers and the other entries are made unauthorisedly by the complainant cannot be taken away. Whether that plea will be accepted or not ultimately is entirely different. It would certainly be myopic to read the dictum in Francis (supra) to conclude lightly that in every case where admission of signature is made, the cheque need not be sent to the expert. Such erroneous impression if any certainly deserves to be disabused. A reading of the facts in Francis (supra) clearly indicates that, that was a case where there was no reply to the notice of demand. That was also a case where the genuineness of the signature was not challenged when the complainant was cross-examined. That was certainly not a case where the complainant asserted on oath that the indictee had made the entries in the cheque in his personal presence. It is on those facts that the Court held that forwarding of the cheque to the expert would be an adventure calculated to play for time only. That was obviously the reason why the Court refused the prayer to send the cheque to the expert.
5. Different is the fact scenario in this case. The accused has taken a consistent stand that except the signature, other entries are not made by her and that the complainant has misutilised the blank signed cheque by making other entries as it pleased him. The complainant did assert on oath that the entries in the cheque were written by the accused in his personal presence.
6. I do of course find another inadequacy in the application (copy of which is produced as Annexure-A) in that a forthright request that the genuineness of the handwriting in the cheque may be compared with the admitted handwriting of the accused is not made at all. The learned Counsel has taken me through the affidavit filed in support of the said petition and contends that the innocuous omission is not significant and it is only an innocent inadequacy in the preparation of the petition. In the petition there is a prayer for only ascertaining the age difference between the signature on the one hand and the other entries in the cheque on the other. The learned Counsel for the petitioner submits that what the petitioner really wants is comparison of the admitted and specimen handwritings of the petitioner with the disputed entries made in the cheque.
7. If the petitioner makes a fresh application making it clear that she wants the admitted handwritings/specimen writings of hers to be compared with the disputed writings in the cheque, the learned Magistrate shall accept the said request and send the cheque for comparison by an expert. All necessary steps in this regard will be taken by the petitioner within a period of 30 days from this day before the learned Magistrate.
8. I do appreciate the contention of the learned Counsel for the respondent that the complainant is unnecessarily kept waiting for a long period of time. Certainly if ultimately it is found that the accused is guilty, in the facts and circumstances of this case a direction to adequately compensate the complainant must be issued by the Court. An appropriate direction for payment of interest on the cheque amount till the date of the payment must also be issued, if the complainant were to eventually succeed in the case.
9. The learned Counsel for the respondent has of course pointed out to me the decision in Lilly Kutty v. Lawrance I . As I understand the dictum, it only means that the mere fact that the payee's name and other entries in the cheque are written in a handwriting different from that of the drawer does not ipso facto vitiate the cheque or lead to the conclusion that there is material alteration in the cheque. The said decision according to me does not at all lay down a proposition that a defence that a blank signed cheque was misused by the complainant is not available to the accused in a prosecution under Section 138 of the Negotiable Instruments Act. That decision cannot also help the complainant in the facts and circumstances of this case.
10. In the result-
(a) This Crl.M.C. is allowed in part to the extent indicated above.
(b) The learned Magistrate is directed to forward the cheque to the expert for comparison as indicated earlier if the condition stipulated is complied with by the petitioner.
11. It is made clear that I have not intended to express any opinion on the disputed facts involved. The learned Magistrate must consider the materials placed before him in accordance with law unfettered by any observations when he is finally called upon to appreciate the evidence.