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Criminal · Reportable judgment

Ajitsinh Chehuji Rathod vs State of Gujarat & Anr.

Court
Supreme Court of India
Date
29 January 2024
Case No.
Criminal Appeal No. 478 of 2024
Result
Dismissed
Bench
Bhushan Ramkrishna Gavai
Citation
[2024] 1 S.C.R. 1083 : 2024 INSC 63
Acts & Sections
Negotiable Instruments Act, 1881 CrPC Evidence Act Evidence Act
Supreme Court Reports [2024] 1 S.C.R. 1083 : 2024 INSC 63
Issue for consideration
Appellant-accused convicted u/s.138, Negotiable Instruments Act, 1881, had claimed mismatch of signatures on the cheque in question. His application for comparison of the signature as appearing on the cheque through the handwriting expert was rejected by trial court. High Court whether justified in dismissing the application filed by the appellant u/s.391, CrPC for taking additional evidence at appellate stage and seeking a direction to obtain the opinion of the handwriting expert.
Headnote

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:

Read the full headnote (3 more paragraphs)

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]

Keywords: Cheque dishonour · Presumptions under Negotiable Instruments Act · Rebuttable · Indorsements made on negotiable instrument · Holder in due course · Mismatch of signatures · Comparison of the signature · Handwriting expert · Appellate stage, Additional evidence · Document issued by Bank · Certified copy · Specimen signature maintained by Bank · Bank official · Appellate Court · Failure of justice

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.

Full Judgment Text

Judgment Mehta, J. 1. Leave granted. 2. The instant appeal by special leave filed at the behest of the appellant accused calls into question the order dated 25th October, 2023 passed by the High Court of Gujarat rejecting the Criminal Misc. Application No. 17933 of 2023 preferred by the appellant under Section 482 read with Section 391 of the Code of Criminal Procedure, 1973(hereinafter being referred to as ‘CrPC’). 3. The appellant was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881(hereinafter being referred to as ‘NI Act’) before the learn
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