Summary
In a Section 138 Negotiable Instruments Act prosecution brought by Oriental Bank of Commerce over a dishonoured cheque for Rs 5.57 crores, the accused director admitted signing the cheque but said he handed it over blank as security. The Delhi High Court permitted the accused to engage a private handwriting expert to examine who had filled in the cheque's details. The Court held that a drawer who signs a cheque and hands it to the payee is presumed under Section 139 to be liable unless he rebuts that presumption by evidence. It is immaterial that someone other than the drawer filled in the details of a signed cheque. An expert's opinion on authorship of the writing therefore could not rebut the presumption and served no purpose. The appeal was allowed, the expert's report excluded from the trial and the application dismissed, with the accused free to raise other defences.
Issues
- Whether an accused who admits signing a cheque may be permitted to adduce handwriting expert evidence on who filled in its details, in a prosecution under Section 138 of the Negotiable Instruments Act, 1881.
Provisions considered
- Sections 138 and 139, Negotiable Instruments Act, 1881Once the drawer admits signing and handing over the cheque, the Section 139 presumption arises and must be rebutted by evidence that it was not for a debt or liability. Who filled in the details is irrelevant to that question, so expert evidence on it was unnecessary. (¶¶ 4, 13, 14, 15, 17)
Held
- A person who signs a cheque and hands it to the payee remains liable unless he adduces evidence rebutting the presumption that it was issued for a debt or liability. Even a signed blank cheque voluntarily handed over attracts the presumption, and the payee may fill in the particulars, following Bir Singh and Kalamani Tex. (¶¶ 14, 15)
- The Section 139 presumption is rebuttable on a preponderance of probabilities by raising a probable defence. But the fact that someone other than the drawer filled in the details is immaterial to that defence. The presumption cannot be rebutted merely by a handwriting expert's report on who wrote the details. (¶¶ 16, 17)
- Since the signature was admitted, permitting a handwriting expert served no purpose. The accused remain free to raise any other legitimate defence that the cheque was not issued for a pre-existing debt or liability. (¶¶ 4, 11, 18)
Result
Appeal allowed. The High Court's order is set aside, the expert's report obtained under it is excluded from consideration at trial and the application for handwriting examination is dismissed, without affecting the merits of the trial.