S.138 NI Act | Gujarat High Court Sends Disputed Cheque To Handwriting Expert 'In Larger Interest Of Fair Trial'

It was contested by the Petitioner that he was duped by his friend in collusion with the Complainant. He submitted that he had borrowed Rs. 10 lacs through a friend from the Complainant. Since he failed to return the amount, the Petitioner issued a cheque dated 25.10.2018 and instructed him to deposit the same day so that he would get the money. Upon depositing the cheque, it got returned with the endorsement of 'Account closed' and therefore, the Complainant issued notice to the Petitioner and lodged the complaint.

It was averred that the cheque was obtained by the Petitioner's partner who wanted to show the cheque for security purposes to the Complainant who was in the business of lending money. It was clearly specified by the partner that the cheque was not intended for any existing debt or liability. However, this narrative went unheard by the Sessions Judge and therefore, the instant petition was filed.

Submitting that the cheque was signed in 2011 and misused in 2018 by the Complainant, the Petitioner insisted that had the right to defend himself and in the process of raising a bonafide and probable defence. He argued that fair opportunity as under Section 138 and 118 of the NI Act ought to have been given to the Petitioner for raising his defence.

Per contra, the Respondent No. 2 contested that the signature was by the Petitioner even though the Complainant had filled the body of cheque. Reference was made to Sec 20 and 87 of the NI Act to argue that the presumption lies in favour of the signature and therefore, there was no reason to send the cheque to the Expert. There was also no dispute about the amount mentioned in the cheque.

Justice Gita Gopi noted the allegation of the Petitioner that the partner had given the cheque to the Complainant in 2011 for 2-3 days as the Complainant had insisted for a blank cheque. The Petitioner was also informed that the Complainant had torn off the cheque and therefore, he did not proceed any further.

Reliance was placed on T. Nagappa v. Y.R. Muralidhar by the Bench to observe:

"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."

It was further opined by the Apex Court in Nagappa:

"The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it."

Thus, it observed that the Petitioner was entitled to an opportunity to adduce the evidence keeping in mind the objectives of a fair trial.

Hence, the order of Sessions Court was set aside and trial Court was directed to send the disputed cheque to FSL for opinion of the Hand-writing Expert.

Case Title: SHASHIKANT SHAMALDAS PATEL v/s STATE OF GUJARAT

Case No.: R/SCR.A/11178/2021

Citation: 2022 LiveLaw (Guj) 250

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