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. {Para 15}
16. Thus, we are of the view that if at all, the appellant was
desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque.
17. However, despite having opportunity, the accused appellant
did not put any question to the bank official examined in defence
for establishing his plea of purported mismatch of signature on the cheque in question and hence, we are of the firm opinion that the appellate Court was not required to come to the aid and assistance of the appellant for collecting defence evidence at his behest. The presumptions under the NI Act albeit rebuttable operate in favour of the complainant. Hence, it is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal@SLP(Crl.) No(s). 16641 of 2023
AJITSINH CHEHUJI RATHOD Vs STATE OF GUJARAT & ANR.
Author: Mehta, J.
Citation: 2024 INSC 63.
1. Leave granted.
2. The instant appeal by special leave filed at the behest of the
appellant accused calls into question the order dated 25th October,
2023 passed by the High Court of Gujarat rejecting the Criminal
Misc. Application No. 17933 of 2023 preferred by the appellant
under Section 482 read with Section 391 of the Code of Criminal
Procedure, 1973(hereinafter being referred to as ‘CrPC’).
3. The appellant was prosecuted for the offence punishable
under Section 138 of the Negotiable Instruments Act,
1881(hereinafter being referred to as ‘NI Act’) before the learned
trial Court with an allegation that the cheque to the tune of Rs. 10
lakhs issued by the appellant in favour of the complainant Shri
Mahadevsinh Cahndaasinh Champavat upon being presented in
the bank was dishonoured “for insufficient funds and account
dormant”.
4. During the course of trial, the appellant preferred an
application dated 13th June, 2019 before learned trial Court with
a prayer to send the cheque to the handwriting expert for
comparison of the handwriting as well as signature appearing
thereon with a plea that his signatures had been forged on the
cheque in question. The learned trial Court rejected the
application vide order dated 13th June, 2019 itself observing that
the application was aimed at delaying the trial. The learned trial
Court further observed that the matter was at the stage of defence
and the accused could lead evidence to prove his claim pertaining
to mismatch of signatures.
5. The order dated 13th June, 2019 passed by learned trial Court
was not challenged any further and thus the same attained
finality. The trial Court, proceeded to convict the accused
appellant vide judgment dated 7th November, 2019.
6. The appellant preferred an appeal before the Principal
Sessions Judge, Gandhinagar and during pendency thereof, he
filed an application under Section 391 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. Another prayer made in the said
application was that the 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.
7. Such application preferred by the appellant was rejected by
the learned Principal Sessions Judge, Gandhinagar vide detailed
order dated 25th July, 2023, which was carried by the appellant to
the High Court by filing the captioned Criminal Misc. Application
No. 17933/2023 which came to be dismissed by order dated 25th
October, 2023 which is under challenge in this appeal.
8. We have considered the submissions advanced by learned
counsel for the appellant and have gone through the impugned
order and the material placed on record.
9. At the outset, we may note that the law is well-settled by a
catena of judgments rendered by this Court that power to record
additional evidence under Section 391 CrPC should only be
exercised when the party making such request was prevented from
presenting the evidence in the trial despite due diligence being
exercised or that the facts giving rise to such prayer came to light
at a later stage during pendency of the appeal and that nonrecording
of such evidence may lead to failure of justice.
10. It is apposite to mention that the learned first appellate
Court, i.e., the Principal Sessions Judge, Gandhinagar had taken
note of the fact that during the trial, 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.
11. Furthermore, as per the cheque return memo of the Bank
dated 26th February, 2018, the reason for the cheque being
returned unpaid is clearly recorded as “funds insufficient and
account dormant”.
12. There is a specific column no. 10 in the said written memo
which reads as follows:-
“Bank of Baroda
(HEAD OFFICE MANDVI, BARODA)
Infocity Branch Date: 26.02.2018
Cheque No. 503273 for Rs. 10,00,000/- returned unpaid for
reason No. 22 3093010008596
1-9 ….
10 Drawer’s signature differs from specimen recorded with
us.
11-22….”
Manifestly, the cheque was not returned unpaid for the
reason that the signature thereupon differed from the specimen
signature recorded with the bank.
13. Section 118 of the NI Act has a bearing upon the controversy
and is thus, reproduced hereinbelow:-
“118. Presumptions as to negotiable instruments.—Until the
contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument
was made or drawn for consideration, and that every
such instrument, when it has been accepted, indorsed,
negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration;
(b) as to date: that every negotiable instrument bearing
a date was made or drawn on such date;
(c) as to time of acceptance: that every accepted bill of
exchange was accepted within a reasonable time after
its date and before its maturity;
(d) as to time of transfer: that every transfer of a
negotiable instrument was made before its maturity;
(e) as to order of indorsements: that the indorsements
appearing upon a negotiable instrument were made in
the order in which they appear thereon;
(f) as to stamps: that a lost promissory note, bill of
exchange or cheque was duly stamped;
(g) that holder is a holder in due course: that the
holder of a negotiable instrument is a holder in due
course:
Provided that, where the instrument has been obtained from its
lawful owner, or from any person in lawful custody thereof, by
means of an offence or fraud, or has been obtained from the maker
or acceptor thereof by means of an offence or fraud or for unlawful
consideration, the burden of proving that the holder is a holder in
due course lies upon him.”
14. 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.
15. 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.
16. Thus, we are of the view that if at all, the appellant was
desirous of proving that the signatures as appearing on the cheque
issued from his account were not genuine, then he could have
procured a certified copy of his specimen signatures from the Bank
and a request could have been made to summon the concerned
Bank official in defence for giving evidence regarding the
genuineness or otherwise of the signature on the cheque.
17. However, despite having opportunity, the accused appellant
did not put any question to the bank official examined in defence
for establishing his plea of purported mismatch of signature on the
cheque in question and hence, we are of the firm opinion that the
appellate Court was not required to come to the aid and assistance
of the appellant for collecting defence evidence at his behest. The
presumptions under the NI Act albeit rebuttable operate in favour
of the complainant. Hence, it is for the accused to rebut such
presumptions by leading appropriate defence evidence and the
Court cannot be expected to assist the accused to collect evidence
on his behalf.
18. The appellant had sought for comparison of the signature as
appearing on the cheque through the handwriting expert by filing
an application before the trial Court which rejected the same vide
order dated 13th June, 2019. The said order was never challenged
and had thus attained finality.
19. So far as the allegation of the accused appellant that he did
not receive the notice under Section 138 of the NI Act is concerned,
it would be for the appellate Court while deciding the appeal to
examine such issue based on the evidence available on record and
thus, 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.
20. As an upshot of the above discussion, we find no infirmity in
the impugned orders warranting interference. The appeal lacks
merit and is dismissed as such.
21. Pending application(s), if any, shall stand disposed of.
………..………………………………J.
(B.R. GAVAI)
……….……………………………….J.
(SANDEEP MEHTA)
New Delhi;
January 29, 2024.
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