S.Gopal v. D.Balachandran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 22.1.2008.CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.No.1658 of 2007andM.P.No.1 of 2007S.GopalPetitioner/Accusedvs. D.BalachandranRespondent/ComplainantCriminal Revision Case filed under sections 397 and 401 Cr.P.C.against the order dated 19.10.2007 made in C.M.PNo.2915 of 2007 inC.C.No.1287 of 2006 on the file of Judicial Magistrate I, Erode. For petitioner : Mr.N.ManokaranFor respondent : Mr.S.JayakumarORDERThe revision is directed against the impugned order passed bythe learned Judicial Magistrate in C.M.P.No.2915 of 2007 filed undersection 45 of the Indian Evidence Act to send the disputed cheque forhandwriting expert's opinion. 2. The petitioner is an accused in a case under section 138 ofthe Negotiable Instruments Act on the file of the learned JudicialMagistrate I, Erode. He filed a petition under section 45 of theEvidence Act to send the disputed cheque for comparison by an expertto determine the age of the ink of the signature found in thedisputed cheque marked as Ex.P1 before the Trial Court. It is hiscontention that the signature found in Ex.P1 has been put in adifferent ink from that of the other particulars filled in thecheque. It is his further contention that he issued blank chequesand pronotes with his signature therein. But, the same has beenfilled and misused by the respondent. Therefore, the petitioner hasprayed for sending the disputed cheque, Ex.P1 to the ForensicLaboratory at Hyderabad to determine the age of the ink of the https://hcservices.ecourts.gov.in/hcservices/ signature of the petitioner. The trial court has rejected such a pleaon the ground that there is no necessity to send the disputed chequefor expert's opinion as the signature found therein had beencategorically admitted by the petitioner. 3. The points that arise for determination are i) Whether the scope of section 20 of the Negotiable InstrumentsAct applies to blank cheque signed by the drawer. ii) Whether a blank cheque signed by the drawer can be filled up bya holder thereof. iii)Whether the disputed document can be sent to an expert forascertaining the age of the signature found therein.4. Learned counsel appearing for the petitioner vehementlysubmits that a holder of a cheque has no authority to fill up theblank cheque signed by the drawer, inasmuch as section 20 of theNegotiable Instruments Act has no application to a cheque issued by adrawer. He would further contend that a cheque will have to befilled up and signed only by the drawer as section 20 would applyonly to the other instruments viz., pronotes and bill of exchange.As the petitioner seriously disputes the negotiability of the chequein question inasmuch as the particulars found in the cheque werefilled up later on by the respondent to suit his convenience, a fairopportunity will have to be given to the petitioner to rebut theclaim of the respondent. 5. Learned counsel appearing for the respondent would submitthat this court has held that a blank cheque can be filled up by aholder in due course. When the signature found in the cheque isadmitted, the petitioner cannot challenge the particulars filled upby the holder in due course in the cheque. At any rate, he wouldsubmit that there is no perfect science to determine the age of theink used in a document. 6. Section 20 of the Negotiable Instruments Act reads asfollows:-"Inchoate stamped instruments-- Where one personsigns and delivers to another a paper stamped inaccordance with the law relating to negotiableinstruments then in force in India, and eitherwholly blank or having written thereon anincomplete negotiable instrument, he therebygives prima facie authority to the holderthereof to make or complete, as the case may be,upon it a negotiable instrument, for any amount https://hcservices.ecourts.gov.in/hcservices/ specified therein and not exceeding the amountcovered by the stamp. The person so signingshall be liable upon such instrument, in thecapacity in which he signed the same, to anyholder in due course for such amount: providedthat no person other than a holder in due courseshall recover from the person delivering theinstrument anything in excess of the amountintended by him to be paid thereunder."A bare reading of section 20 of the Negotiable Instruments act wouldgo to show that it would apply to only a stamped instrument viz.,pronote and bill of exchange and not to the cheques. As per section20 of the Negotiable Instruments Act, the holder in due course hasevery authority to complete the blank pronote and bill of exchangedelivered to him after properly signing therein by the maker of theinstrument. But, section 20 will have no application to the blankcheques issued after signing by the drawer. 7. This court in RAJENDRAN v. USHARANI (2001-LW (Crl.) 319) hasobserved that no law prescribes that in case of any negotiableinstrument, the entire body of the instrument shall be written onlyby the marker or drawer of the instrument. Once the execution isadmitted, it shall be taken that the cheque was issued by the accusedin favour of the complainant towards the discharge of the liabilityeven in a case where the cheque was filled up by some other person. 8. It is to be noted that there is no reference to section 20 ofthe Negotiable Instruments Act in the aforesaid authority. A generalproposition has been made to the effect that there is a presumption,in case a signed cheque is delivered to the payee, that the chequeso issued by the drawer in favour of the payee is only towards thedischarge of his subsisting liability. 9. The aforesaid authority does not run counter to the provisionunder section 20 of the Negotiable Instruments Act. As rightlyobserved therein, there is no law which prescribes that a chequeshall be filled up by the drawer himself. If such proposition isaccepted, no unlettered person, who knows only to sign his name, canever be a drawer of a cheque. Further, a person who is physicallyincapacitated to fill up the cheque cannot also draw a cheque andnegotiate it. Of course, as far as the other negotiable instrumentsviz., pronotes and bills of exchange, there is a clear mandate undersection 20 of the Negotiable Instruments Act to the effect that suchan instrument can be negotiated by the maker thereof by simplysigning and delivering the same to the holder in due course giving https://hcservices.ecourts.gov.in/hcservices/ thereby ample authority to the latter to fill up the content of theinstrument as intended by the maker thereof. 10. Even in case of a cheque, as there is no clear provision inthe Negotiable Instruments Act, in the light of the above discussion,the court finds that if a drawer of a cheque gives authority to thepayee or holder in due course or a stranger for that matter to fillup the cheque signed by him, such an instrument also is valid in theeye of law. There is no bar for the drawer of a cheque to giveauthority to a third person to fill up the cheque signed by him forthe purpose of negotiating the same. 11. Learned counsel appearing for the petitioner, referred to anauthority in KALYANI BASKAR v. M.S.SAMPOORNAM (2007(2) CTC 364)wherein the Honourable Supreme Court observed as follows:-"Section 243(2) is clear that a Magistrate holdingan inquiry under the Cr.P.C. in respect of anoffence triable by him does not exceed his powersunder Section 243(2) if, in the interest ofjustice, he directs to send the document forenabling the same to be compared by a hand-writingexpert because even in adopting this course, thepurpose is to enable the Magistrate to compare thedisputed signature or writing with the admittedwriting or signature of the accused and to reachhis own conclusion with the assistance of theexpert. The appellant is entitled to rebut thecase of the respondent and if the document viz.,the cheque on which the respondent has relied uponfor initiating criminal proceedings against theappellant would furnish good material for rebuttingthe case, the Magistrate having declined to sendthe document for the examination and opinion of thehand-writing expert has deprived the appellant ofan opportunity of rebutting it. The appellantcannot be convicted without an opportunity beinggiven to her to present her evidence and if it isdenied to her, there is no fair trial. 'Fairtrial' includes fair and proper opportunitiesallowed by law to prove her innocence. Adducingevidence in support of the defence is a valuableright. Denial of that right means denial of fairtrial. It is essential that rules of proceduredesigned to ensure justice should be scrupulouslyfollowed, and Courts should be jealous in seeing https://hcservices.ecourts.gov.in/hcservices/ that there is no breach of them. We have not beenable to appreciate the view of the learned Judge ofthe High Court that the petitioner has filedapplication under Section 243, Cr.P.C. withoutnaming any person as witness or anything to besummoned, which are to be sent for handwritingexpert for examination. As noticed above, Section243(2), Cr.P.C. refers to a stage when theprosecution closes its evidence after examining thewitnesses and the accused has entered upon hisdefence. The appellant in this case requests forsending the cheque, in question, for the opinion ofthe hand-writing expert after the respondent hasclosed her evidence, the Magistrate should havegranted such a request unless he thinks that theobject of the appellant is vexation or delayingthe criminal proceedings. In such circumstances,the order of the High Court impugned in this Appealupholding the order of the Magistrate is erroneousand not sustainable."In a case where the signature of the cheque was in dispute in aprosecution under section 138 of the Negotiable Instruments Act, theHonourable Supreme Court has observed that denial of an opportunityto the accused seeking to send the disputed cheque for examinationand opinion of handwriting expert would amount to unfair trial anddeprivation of an opportunity to the accused to rebut the claim ofthe complainant. The aforesaid ratio cannot be extended to the factsand circumstances of this case where the signature in the disputedcheque was candidly admitted by the accused. 12. Following the aforesaid ratio, this court has also held inP.R.RAMAKRISHNAN v. P.GOVINDARAJAN ((2007) 1 MLJ (Crl.) 1297 thatwhen the accused disputes his signature in the cheque in question ina proceeding under section 138 of the Negotiable Instruments Act, thecourt has to afford an opportunity to the accused to obtain anexpert's opinion as to the genuineness or otherwise of the signaturefound therein. The above ratio will not apply to a case where acheque admittedly signed by the drawer is sought to be analysed by anexpert for opinion as to the age of the ink used in the cheque.13. In YASH PAL v. KARTAR SINGH (AIR 2003 Punjab and Haryana344), it has been observed that the age of the ink cannot bedetermined on the basis of the writing if the ink in dispute wasmanufactured five years prior to the date of execution of thedocument and used effectively on a particular date for the first time https://hcservices.ecourts.gov.in/hcservices/ and an expert's opinion as to the age of ink will not resolve anycontroversy, but, it will help to create only confusion. 14. As rightly observed by the Punjab and Haryana High Court inthe ratio referred to above, if an old ink is used by the person, whoassisted the drawer who had already put his signature in the cheque,to fill up the matter, no useful purpose will be served if such acheque is analysed by the expert for rendering an opinion. 15. It is found that the age of the ink cannot be determined byan expert with scientific accuracy. Further, the use of old inkmanufactured long ago will definitely create a dent in the opinionfurnished by an expert. Therefore, there is no necessity for sendingthe disputed cheque admittedly signed by the petitioner to an expertfor his opinion. The order passed by the learned Judicial MagistrateI, Erode in C.M.PNo.2915 of 2007 in C.C.No.1287 of 2006 does notsuffer from any illegality or impropriety. Therefore, there is nowarrant for interference with the well considered order passed by theTrial Court. 16. In view of the above, the order passed by the learnedJudicial Magistrate is confirmed. The criminal revision case standsdismissed. The connected Miscellaneous Petition also standsdismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssk. ToJudicial Magistrate I, Erode. +1cc to M/s.N.Manokaran, Advocate Sr 2400+1cc to M/s. S.Jayakumar, Advocate Sr 2096AVM (CO)km/31.1.Crl.R.C.No.1658/2007