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2025 DIGILAW 2512 (KER)

Santhosh Eapen v. State of Kerala

2025-09-19

V.G.ARUN

body2025
ORDER : 1. The petitioner is the accused in S.T. No.72 of 2021, pending on the files of the Judicial First Class Magistrate Court- IV, Kottayam. The genesis of the case is the 2 nd respondent's complaint regarding commission of the offence under Section 138 of the Negotiable Instruments Act ('the N.I.Act' for short) by the petitioner. In his complaint, the 2 nd respondent alleged that the petitioner had borrowed amounts from him for business purposes. Although portion of the amount was repaid, as on 02.12.2020, Rs.24,80,000/- was due from the petitioner. In discharge of the liability, the petitioner issued a post dated cheque and assured that there was sufficient balance in his account. Contrary to the assurance, the cheque, on presentation was dishonoured for insufficiency of funds. In spite of issuing notice demanding the amount, the petitioner did not make the payment or send a reply. 2. In order to prove his case, the 2 nd respondent mounted the box and also got the Manager of the petitioner's bank examined as PW2. During his examination under Section 313 of Cr.P.C. petitioner denied the incriminating circumstances put to him and thereafter, filed an application under Section 311A of Cr.P.C. with the prayer to get his signature and entries in the cheque compared with his admitted signatures and writings. The court below having dismissed the petition, this Crl.M.C is filed. 3. Learned counsel for the petitioner contended that the petitioner and the 2 nd respondent were business associates and the subject cheque was taken from the petitioner's office clandestinely and presented by forging his signature and making false entries. When specific questions in this regard were put to the 2 nd respondent during cross examination, he asserted that the petitioner himself had made the entries and signed the cheque. Therefore, it is imperative for the petitioner to prove that the signature and entries on the cheque are not his. If the petitioner succeeds in his attempt, that will aid him in rebutting the presumption under Section 139 of the N.I.Act. Therefore, it is imperative for the petitioner to prove that the signature and entries on the cheque are not his. If the petitioner succeeds in his attempt, that will aid him in rebutting the presumption under Section 139 of the N.I.Act. The decision of the Apex Court in T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633 and that of this Court in Oolamkunnath O.M. Sindhu v. Alokandy Krishan and Another, 2023 SCC OnLine Ker 5903 are pressed into service to contend that opportunity must be granted to the accused for adducing evidence in rebuttal of the presumption under Section 118 (a) or 139 of the N.I. Act, when the defence is raised that the complainant had misused the cheque. 4. Learned counsel for the 2 nd respondent referred to the cross examination of her client to point out that, from the question posed by the petitioner's counsel it is apparent that the petitioner's case was that he had handed over a signed blank cheque as security. Referring to the decision in Balu Sudam Khalde and Another v. State of Maharashtra, 2023 SCC OnLine SC 355, it is argued that the suggestion made by the defence counsel to a witness during cross examination, if found to be incriminating in any manner, would bind the accused. It is then argued that since service of statutory notice on the petitioner is accepted, the petitioner's failure to send reply speaks volumes about his complicity. Support for this argument is sought to be drawn from this Court's decision in Francis v. Pradeep , 2004 (2) KLT 1080 . 5. According to the learned counsel, the very fact that the cheque was returned with the endorsement 'funds insufficient' and not 'signature varies', shows that the signature in the cheque had matched the signatures of the petitioner maintained in the bank. Moreover, even though the account opening form and those in specimen signature card of the petitioner were produced and marked through the Manager of his bank (PW2), the witness was not cross examined with reference to the signature in the cheque and those in the specimen signature card. Moreover, even though the account opening form and those in specimen signature card of the petitioner were produced and marked through the Manager of his bank (PW2), the witness was not cross examined with reference to the signature in the cheque and those in the specimen signature card. Reliance is placed on the decision of the Apex Court in Ajitsinh Chehuji Rathod v. State of Gujarat, 2024 (1) KHC 489 to contend that if the petitioner was desirous of proving that the signature appearing on the cheque was not genuine, he should have questioned the Bank Manager about it. Finally, it is contended that the varied stands taken by the petitioner during the cross examination of PW1, the Section 313 examination and in the petition under Section 311A Cr.P.C itself is sufficient proof of lack of bona fides in submitting the petition. 6. As rightly pointed out by the counsel for the 2 nd respondent, one of the suggestions made during the cross- examination of PW1 was that, Ext.P2 is the signed blank cheque given by the petitioner as security for the share of profit from the scrap business. As held by the Supreme Court in Balu Sudam Khalde (supra), suggestions made by the defence counsel during cross examination of the prosecution witness would bind the accused. Thus, at the first opportunity, the petitioner's case was that the signed blank cheque was given as security. Thereafter, during his examination under Section 313 Cr.P.C, the stand taken by the petitioner is that while at Bahrain, the petitioner and the 2 nd respondent used to exchange cheques and Ext.P2 is one among those cheques. Surprisingly, in the petition under Section 311A Cr.P.C, the case put forward is that the 2 nd respondent had clandestinely removed the cheque from the petitioner's office and presented it after forging his signature and making entries. Thus, it is evident that the prayer for comparison of the signature by an expert lacks bona fides. Hence, the finding of the learned Magistrate that the attempt is to protract the proceedings cannot be faulted. 7. In support of the argument that the court is bound to send the cheque for comparison, learned counsel for the petitioner had relied on the following findings in Nagappa (supra); “ 7 . Hence, the finding of the learned Magistrate that the attempt is to protract the proceedings cannot be faulted. 7. In support of the argument that the court is bound to send the cheque for comparison, learned counsel for the petitioner had relied on the following findings in Nagappa (supra); “ 7 . When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118 (a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure.” 8. A different view has been taken by the Supreme Court in Ajitsinh Chehuji Rathod (supra), by holding that when the cheque is returned for insufficiency of funds, the presumption under Section 118 (e) of the N.I.Act will come into play and in such event it is for the accused to procure a certified copy of specimen signature maintained by the bank and examine the concerned bank official as to the genuineness or otherwise of the signature on the cheque. The contextually relevant portion of Section 118 of the N.I.Act and the judgment in Ajithsinh are reproduced below; “ 118. Presumptions as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made: xx xxx xxx xxx (e) as to order of indorsement: that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; xxx xx xx xxx xxx Ajitsinh “14. S.118 sub-clause (e) of the NI Act 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. S.118 sub-clause (e) of the NI Act 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. In case, the accused intends to rebut such presumption, he would be required to lead evidence to this effect. 15. 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 under S.73 of the Indian Evidence Act, 1872. 16. Thus, we are of the view that if at all, the appellant was desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque.” 9. In the case at hand also, the cheque was returned with the endorsement “funds insufficient” and not “signature differs”. Therefore, the presumption under Section 118 (e) would apply and it was for the petitioner to have rebutted the presumption by summoning the document containing his specimen signature maintained in the bank and examining the officer concerned. If by such examination, the petitioner is able to create a doubt regarding the genuineness of his signature in the cheque, then the court was bound to accede to his request to send the cheque for comparison. If such an attempt had been made, the dictum laid down in Nagappa would have applied. Not only were any such steps taken by the petitioner, but on the specimen signature card being produced and marked through PW2, the Manager of the petitioner's bank, no question was put to the witness in cross-examination about the alleged difference between the specimen signatures and the signature in the cheque. For the aforementioned reasons, the Crl.M.C. is dismissed.