Negotiable Instruments Act, 1881 – ss.118, 138 – Code of Criminal Procedure, 1973 – s.391 – Presumptions under the NI Act though rebuttable, operate in favour of the complainant – Accused to rebut such presumptions by leading evidence – Cheque dishonoured – Appellant convicted for offence punishable u/s.138 – Claiming mismatch of signatures, during the trial, the appellant had filed application seeking comparison of the signature as appearing on the cheque through the handwriting expert – Rejected by trial court – Order not challenged – At appellate stage, the appellant filed application u/s.391, CrPC for taking additional evidence and seeking a direction to obtain the opinion of the handwriting expert – Dismissed:
Held: s.118 sub-clause (e) provides a clear presumption regarding indorsements made on the negotiable instrument being in order in which they appear thereupon – Thus, the presumption of the indorsements on the cheque being genuine operates in favour of the holder in due course of the cheque in question which would be the complainant herein – If the accused intends to rebut such presumption, he would be required to lead evidence to this effect – Certified copy of a document issued by a Bank is itself admissible under the Bankers’ Books Evidence Act, 1891 without any formal proof thereof – Hence, in an appropriate case, the certified copy of the specimen signature maintained by the Bank can be procured with a request to the Court to compare the same with the signature appearing on the cheque by exercising powers u/s.73, Evidence Act, 1872 – However, in the present case, despite having opportunity, the appellant did not put any question to the bank official examined in defence for establishing his plea of purported mismatch of signature on the cheque in question – Hence, the appellate Court was not required to come to the aid and assistance of the appellant for collecting defence evidence at his behest – Power to record additional evidence u/s.391, CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence or the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and non-recording of such evidence may lead to failure of justice – Furthermore, the appellant also did not challenge the trial court’s order rejecting his application for comparison of the signature as appearing on the cheque through the handwriting expert and thus, had attained finality – Impugned orders do not warrant interference. [Paras 14, 15, 17, 9, 18 and 20]
Code of Criminal Procedure, 1973 – s.391 – Power to record additional evidence – Exercise of – Discussed. [Para 9] Code of Criminal Procedure, 1973 – s.391 – Negotiable Instruments Act, 1881 – s.138 – Appellant-accused alleged that he did not receive the notice u/s.138 of the NI Act and the concerned officer from the Post Office be summoned to prove the same:
Held: It would be for the appellate Court while deciding the appeal to examine such issue based on the evidence available on record – Thus, there was no requirement for the appellate Court to have exercised power u/s.391, CrPC for summoning the official from the Post Office and it rightly rejected the application u/s.391, CrPC. [Para 19]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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