Brief Facts
- The appellant challenged the rejection of his application under Section 482 CrPC by the Gujarat High Court of a case under Section 138 of the NI Act. The appellant was accused of issuing a cheque for Rs. 10 lakhs that was dishonoured due to “insufficient funds and dormant account.” During trial, the appellant requested a handwriting expert’s opinion to verify his signature on the cheque, which was rejected by the Trial Court and the Trial Court later convicted the Appellant.
- During the course of appeal, the Appellant filed an application under section 391 of the CrPC for taking additional evidence at appellate stage and seeking a direction to obtain the opinion of the handwriting expert after comparing the admitted signature of the accused appellant and the signature as appearing on the disputed cheque. The Appellant also requested that concerned officer from the Post Office should be summoned so as to prove the defence theory that the notice under Section 138 of NI Act was never received by the accused appellant. However, the Appellate Court dismissed the application and said order was upheld by the High Court.
Issues
- Whether the appellant was entitled to lead additional evidence under Section 391 of the Criminal Procedure Code at the appellate stage?
- Whether the Application of the Appellant was sustainable when the Appellant has not posed any question to the bank official examined in defence for establishing his plea of purported mismatch of signature on the cheque in question?
- Whether the presumption under section 118 of the NI Act shifts the burden on the Appellant to prove the denial of signature?
Held
The Apex Court dismissed the appeal after opining as follows:
- The appellant examined the witness of the Bank of Baroda in support of his defence but not a single question was put to the said witness regarding genuineness or otherwise of the signatures as appearing on the cheque in question.
- Cheque was not returned due to signature mismatch but on account of insufficiency of funds.
- Section 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.
- 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 Section 73 of the Indian Evidence Act, 1872. The Appellant never procured a certified copy of his specimen signatures from the Bank.
- The Order of the Trial Court rejecting the application of the Appellant was never challenged by the Appellant.
- There was no requirement for the appellate Court to have exercised power under Section 391 CrPC for summoning the official from the Post Office and had rightly rejected the application under Section 391 CrPC. The said is be decided on facts during the course of appeal.
Relevant Paras
- 16, 17, 18, 19