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CDJ 2025 Ker HC 1777
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| Court : High Court of Kerala |
| Case No : Crl. Mc No. 11249 of 2025 |
| Judges: THE HONOURABLE MR. JUSTICE C.S. DIAS |
| Parties : Stani Joseph Versus P.M. John & Another |
| Appearing Advocates : For the Petitioner: Baby Thomas, K.K. Mohandas, Indrajith S Kaimal, C.K. Ehlas Haleema, M.G. Alberthove Francis, Alicia Jose, Biju George, Johny George, Mariamma Joseph, Advocates. For the Respondents: M. P. Prasanth, PP. |
| Date of Judgment : 11-12-2025 |
| Head Note :- |
Negotiable Instruments Act,1881 - Section 138 -
Comparative Citation:
2025 KER 95477, |
| Summary :- |
1. Statutes / Acts / Rules Mentioned:
- Section 138 of the Negotiable Instruments Act, 1881
- Section 139 of the Negotiable Instruments Act, 1881
- Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023
2. Catch Words:
- Cheque bounce
- Handwriting expert
- Presumption
- Onus of proof
- Section 138
- Section 139
3. Summary:
The petitioner, accused under two criminal cases for alleged offences under Section 138 of the Negotiable Instruments Act, sought to have a balance statement (Ext.D3) examined by a handwriting expert to challenge the testimony of the first respondent, who denied authoring the document. The trial court dismissed the application to send the document for forensic analysis, and the Sessions Court dismissed the revision petition as non‑maintainable. The petitioner argued that the document could rebut the presumption under Section 138 and shift the burden under Section 139. Citing Supreme Court precedent that a cheque’s validity is not affected by who fills it, the court held that handwriting expert opinion is merely opinion and not substantive evidence. Consequently, the court found no error in the trial court’s order and dismissed the criminal miscellaneous application, allowing the petitioner to raise his defence at trial.
4. Conclusion:
Petition Dismissed |
| Judgment :- |
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1. The petitioner is the accused in S.T.Nos.33/2023 and 65/2023 on the file of the Court of the Judicial First Class Magistrate-II, Ettumanoor ( ‘Trial Court’, for short), which has been filed by the 1st respondent alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act,1881 ( ‘Act’,in short).
2. The petitioner states that, he has raised specific defence in Annexure A2 reply notice that there was no timber transaction between him and 1st respondent. The cheques in question were actually issued towards security. To substantiate the petitioner’s defence version, he has produced Ext.D3 balance statement which was written by the 1st respondent in his own handwriting. However, when the 1st respondent was examined as PW1, he denied the handwriting in Ext.D3 balance statement. In order to discredit the oral testimony of PW1, the petitioner filed Annexure A4 petition to send Ext.D3 balance statement to the Forensic Science Laboratory, Thiruvananthapuram. However, by Annexure A6 order, the Trial Court dismissed the said application. Aggrieved by Annexure A6 order, the petitioner preferred a revision petition before the Court of the Sessions, Kottayam. But, by Annexure A7 order, the said court dismissed the revision petition as not maintainable in law. Annexure A6 order is ex facie illegal and unsustainable in law. Hence, the Crl.M.C.
3. I have heard the learned counsel for the petitioner and the learned Public Prosecutor.
4. The petitioner has not disputed the execution of the cheques covered in the two complaints. His defence is that, there is no legally enforcible debt payable by him to the 1st respondent covered under the two cheques. In order to prove his defence, he has produced Ext.D3 balance statement, which is allegedly written by the 1st respondent. However, in the cross examination of the 1st respondent, he bluntly denied the same. Therefore, the petitioner wants the said document to be send to a handwriting expert in order to discredit the oral testimony of PW1.
5. The petitioner does not dispute the execution of the two cheques.
6. In Oriental Bank of Commerce v. Prabodh Kumar Tewari [2022 (5) KHC 560], the Hon’ble Supreme Court has emphatically held that, it is immaterial if the cheque is filled by any person other than the drawer, if the cheque is duly signed by the drawer. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert.
7. In addition to the above law, it is also well settled that the opinion of a hand-writing expert is mere opinion which is not substantive evidence.
In the case at hand, the petitioner wants to discredit the oral testimony of PW1, regarding Ext.D3, which according to him was written by PW1. If that be the case, it would be upto the petitioner to let in defence evidence and get the said document proved and shift the onus of proof under Section 139 of the N.I. Act. On a reading of the findings in Annexure A6 order passed by the Trial Court, I do not find any error warranting interference by this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Consequently, the Crl.M.C is dismissed, but without prejudice to the right of the petitioner to raise all his contentions before the Trial Court at the stage of defence and rebut the onus of proof under Section 139 of the N.I.Act.
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