Presumption Which Arises On Signing Of Cheque Cannot Be Rebutted Merely By Report Of Hand-Writing Expert: SC
The Supreme Court has observed that a drawer who signs a cheque is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability.
The Court further observed that the presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert.
The Bench of Justice Dhananjaya Y Chandrachud and Justice AS Bopanna was adjudicating upon an appeal challenging the order of a Single Judge by which the respondents were permitted to engage a hand-writing expert to seek an opinion on whether "the authorship on the questioned writings" (the disputed cheque) can be attributed to the respondents.
The appellant is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act 1980. According to the appellant, a consortium of five companies, availed of credit facilities from the appellant.
It has been alleged that the first respondent handed over a cheque towards the dues of the above five companies. The cheque was presented for encashment, but was returned with the remarks "insufficient funds".
After issuing a legal notice, the appellant instituted a criminal complaint, for an offence punishable under Section 138 of the NI Act. Notices were framed against the first and second respondent under Section 251 of the Code of Criminal Procedure 1973.
During the Trial, the first respondent stated that he is a director in all the five companies; he was an authorized signatory; and a blank signed cheque was given by him towards security.
The first and second respondents filed an application before the Trial Judge seeking to have the cheque in question, the specimen signature and handwriting of the first respondent examined by a government hand-writing expert however the application was dismissed by the Trial Judge.
On an appeal against the aforesaid decision, the High Court held that there was no occasion to allow the examination of a government hand-writing expert. However, the Single Judge nonetheless allowed the petition filed by the respondents to the extent that they were permitted to engage a hand-writing expert for the purpose of examining the disputed writings.
Feeling aggrieved by the decision of the High Court, appellants approached Supreme Court.
Advocate Amar Qamaruddin, appeared for the appellant whereas Advocate Madhav Khuran, appeared for the respondents.
The Court observed thus "A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under Section 139."
"For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability.", the Court added.
Accordingly, the Court set aside the Order of the Single Judge.
Cause Title- Oriental Bank of Commerce v. Prabodh Kumar Tewar