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2013 DIGILAW 2422 (MAD)

T. R. Parama Sundaram v. N. Gurusamy

2013-07-11

S.Vimala

body2013
JUDGMENT 1. This Criminal Revision Petition has been filed by the Accused aggrieved over the dismissal of the Petition under Section 45 of the Evidence Act seeking to send the cheque for the opinion of the Handwriting Expert, by the Order dated 21.2.2013 made in C.M.P. No. 200 of 2013 in S.T.C. No. 1952 of 2003 on the file of District Munsif cum Judicial Magistrate, Perundurai. Facts: 2. The Respondent/Complainant filed the private Complaint against the Accused under Section 138 of the Negotiable Instruments Act. The Complaint was based on the Cheque dated 16.6.2003 for a sum of Rs. 2,00,000/-, which when presented was dishonoured for want of funds. Even after statutory Notice, amount due under Cheque was not paid and hence, the Complaint was laid. 3. The Accused disputed the liability on the ground that he had borrowed only a sum of Rs. 25,000/- in the year 1997 from the Complainant towards the Vehicle Loan, which was also endorsed in the R.C. Book. The Cheque was issued only as a security for the loan transaction. Even after the clearance of the loan, the Cheque issued towards security has been misused and the Complaint has been falsely laid. The Accused examined two witnesses, namely, DW1 - Bank Manager, who has spoken about the issuance of Cheque in the year 1997 and DW2 - Regional Transport Officer, who has spoken about the entries made in the Registration Certificate regarding the Loan transaction with Guru Finance, of which the Complainant was the Managing Director. The Accused has admitted the signature in the Cheque, but disputed the contents/writings under Ex.P1, Cheque. At the same time, the Accused has admitted the writings under Ex.P2-Challan as that of him. On this basis, the Accused filed a Petition seeking to compare Ex.P2 containing the admitted handwriting/signature of the Accused with that of Ex.P1, Cheque, under which though signature is admitted, the writings are disputed. The Petition was dismissed, as against which the present Revision Petition has been filed. 4. The Petition has been dismissed on the ground that as the signature in the Cheque is admitted and Section 20 of the N.I. Act gives authority to the holder to fill up the Cheque, it is not necessary to send the documents for the opinion of the Handwriting Expert. This order is under challenge. 5. 4. The Petition has been dismissed on the ground that as the signature in the Cheque is admitted and Section 20 of the N.I. Act gives authority to the holder to fill up the Cheque, it is not necessary to send the documents for the opinion of the Handwriting Expert. This order is under challenge. 5. It would be relevant to point out the two issues that are sought to be referred to expert opinion: (1) Whether the Accused himself has filled up the contents or writings of Ex.P1-Cheque; and (2) Whether the writings in the Challan-Ex.P2 and the writings in Ex.P1-Cheque are that of the same person. 6. The learned Counsel for the Respondent/Complainant pointed out that already the Accused has taken the documents to the Handwriting Expert and after getting the opinion, has examined the expert also and therefore, the present Petition is unwarranted. The learned Counsel for the Accused met the contention by contending that, even though on a prior occasion, Expert Opinion has been sought for and Expert has been examined, the reference was not correctly/accurately/appropriately addressed to the Expert and therefore, the Expert Opinion became useless. 7. The contention of the learned Counsel for the Accused is that Section 20 of the N.I. Act, which gives authority to the holder to fill up the negotiable instrument is not applicable to Cheque and therefore, the dismissal of the Petition by the Magistrate is illegal. It is relevant to quote Section 20 of the N.I. Act: “20. Inchoate stamped instrument.—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 is negotiable instrument, for any amount specified therein and not exceeding the amount covered ???y 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 any thing in excess of the amount intended by him to be paid thereunder.” It is pointed out that the holder can fill up the amount to the extent of not exceeding the amount covered by the stamp affixed in the negotiable instrument and as the Cheque is not an instrument requiring to be stamped, provisions of Section 20 is not applicable to the Cheques. 8. On the other hand, the learned Counsel for the Respondent relied upon the following decisions to support the proposition that Section 20 of the N.I. Act covers Cheques also: 1. P.S.A. Thamotharan v. Dalmia Cements, 2004 (5) CTC 84 , Negotiable Instruments Act does not make it mandatory that blanks in Cheque should be written by drawer of the Cheque alone. 2. N. Seerangan v. V.V. Khalid Haji (Mudariyil), 2011 (2) MWN (Cr.) DCC 160, Section 20 deals with prima facie authority of the drawee of the Cheque, either wholly blank or incomplete, to fill the same. 3. Dhinakar v. Kezhson, 2013 (1) MWN (Cr.) (DCC) 1 : 2012 (4) MLJ (Crl.) 772, there is no bar in Negotiable Instruments Act for a Cheque to be filled up by any person other than the drawer. 4. Babu v. Vinayagam, 2012 (2) LW (Crl.) 665, there is no bar for the drawer of the Cheque to give authority to a third person to fill up the Cheques signed by him for the purpose of negotiating the same. 5. Vijender Singh v. Eicher Motors Limited, 2012 (1) MWN (Crl.) DCC 27 (Del), Issuance of blank signed Cheque would mean that person signing it has given implied authority to holder of a Cheque to fill up blank which he has left. 9. A perusal of Section 118 of the Negotiable Instruments Act would go to show that there is a presumption as to due stamping in respect of lost Promissory Note/Bill of Exchange/Cheque and the provision reads as follows: “Section 118(f): as to stamp — that a lost Promissory Note, Bill of Exchange or Cheque was duly stamped.” 10. 9. A perusal of Section 118 of the Negotiable Instruments Act would go to show that there is a presumption as to due stamping in respect of lost Promissory Note/Bill of Exchange/Cheque and the provision reads as follows: “Section 118(f): as to stamp — that a lost Promissory Note, Bill of Exchange or Cheque was duly stamped.” 10. From the perusal of the provisions, it is clear that originally the Cheque was also intended to be a stamped instrument and the requirement of stamping has been subsequently dispensed with. Therefore, the contention that Section 20 will not apply to Cheque cannot be accepted and the decisions referred above will fortify the view that Cheque is also covered under Section 20 of the NI Act. 11. The main reason for the dismissal of the Petition by the lower Court is that when the signature in the Cheque is admitted and as Section 20 gives authority to the drawer to fill up the Cheque, the handwriting in the Cheque is immaterial and therefore, it need not be sent for Expert Opinion. 12. Having regard to the defence taken it appears that the Accused wanted to prove that Cheque was given in the year 1997, but the Complainant had filled it by putting the year 2003. To show that the Cheque book was issued in the year 1997, the Accused has examined the Bank officials. It is contended that when the law places burden on the Accused, that is to rebut the presumption arising under Section 138 and 139 of the Negotiable Instruments Act, he must be given an opportunity to discharge it. In support of the contention, the decision reported in T. Nagappa v. Y.R. Muralidhar, 2008 (5) SCC 633 , is relied upon. The legal proposition is correct, but whether the Accused has made out a case for sending the document for Forensic examination is the issue to be considered. 13. Irrespective of the presumption available under Section 20 of the N.I. Act, the Court may permit Forensic examination of the document, provided it would be helpful for establishing the truth of the case. It is the Accused who must decide the nature of evidence to be adduced, as he is the only person who knows how to prove his defence. Irrespective of the presumption available under Section 20 of the N.I. Act, the Court may permit Forensic examination of the document, provided it would be helpful for establishing the truth of the case. It is the Accused who must decide the nature of evidence to be adduced, as he is the only person who knows how to prove his defence. If the Accused is able to show that he will be able to bring a relevant material for the purpose of this case, than the Court must consider his request, so that he will be able to rebut the presumption. It is not explained to the Court as to how the Accused would be able to prove, at which point of time, the year 2003 was filled up (even assuming that the contention raised in the defence may be true). 14. The Accused has not judiciously used the earlier opportunity afforded to him to send the disputed document to the opinion of the Handwriting Expert. Admittedly, the case is pending from 2003. This is the third Revision Petition in respect of the similar relief. 15. Therefore, there is no merit in the Revision Petition and the Revision Petition is dismissed. Consequently, connected M.Ps. are closed.