Case Note & Summary
The Supreme Court heard an appeal by special leave challenging the High Court of Gujarat's order dated 25th October 2023, which rejected the appellant's Criminal Miscellaneous Application No. 17933 of 2023 filed under Section 482 read with Section 391 of the Code of Criminal Procedure, 1973. The appellant had been prosecuted under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of a cheque for Rs. 10 lakhs issued to the complainant, with the bank memo citing 'insufficient funds and account dormant' as reasons. During trial, the appellant filed an application on 13th June 2019 seeking handwriting expert comparison of the cheque signature, alleging forgery, but the trial court rejected it, observing it aimed to delay trial and that the accused could lead evidence on signature mismatch. This order attained finality as unchallenged. The trial court convicted the appellant on 7th November 2019. In appeal before the Principal Sessions Judge, Gandhinagar, the appellant filed an application under Section 391 CrPC for additional evidence, seeking handwriting expert opinion and summoning of post office official to prove non-receipt of Section 138 notice. The Sessions Judge rejected this on 25th July 2023, and the High Court dismissed the subsequent application. The Supreme Court considered whether the appellate courts erred in rejecting the Section 391 application. The appellant argued for additional evidence to prove forgery and non-receipt of notice. The Court analyzed that power under Section 391 CrPC is exercisable only when evidence could not be presented despite due diligence or facts emerged later, and non-recording would cause injustice. It noted the appellant examined a bank witness during trial but asked no questions about signature genuineness, and the bank memo showed the cheque was returned for insufficient funds, not signature mismatch. The Court referenced Section 118 of the NI Act, which presumes endorsements on negotiable instruments are genuine, placing rebuttable presumption in complainant's favor. It held the accused must rebut this by leading defence evidence, and courts cannot assist in evidence collection. Regarding handwriting, the Court stated certified copies of specimen signatures from banks are admissible under the Bankers' Books Evidence Act, 1891, and comparison could be requested under Section 73 of the Indian Evidence Act, 1872, but the appellant failed to utilize this. On notice service, it held the appellate court could examine the issue based on existing evidence without additional evidence under Section 391. The Court found no infirmity in the impugned orders, dismissed the appeal as lacking merit, and disposed of any pending applications.
Headnote
A) Criminal Procedure - Additional Evidence - Section 391 Code of Criminal Procedure, 1973 - The Supreme Court held that power under Section 391 CrPC should be exercised only when the party was prevented from presenting evidence despite due diligence or facts came to light later, and non-recording may lead to failure of justice - The appellant had opportunity during trial but failed to question bank witness about signature mismatch, so appellate court was not required to assist in collecting defence evidence (Paras 9-10, 17). B) Evidence Law - Presumptions - Section 118 Negotiable Instruments Act, 1881 - The Court applied presumption under Section 118(e) that endorsements on negotiable instruments are genuine - This presumption operates in favor of the holder (complainant) and is rebuttable, placing burden on accused to lead appropriate defence evidence to rebut it (Paras 13-14, 17). C) Banking Law - Cheque Dishonour - Section 138 Negotiable Instruments Act, 1881 - The cheque was dishonoured for 'insufficient funds and account dormant' per bank memo dated 26.02.2018 - The memo specifically indicated in column 10 that drawer's signature did not differ from specimen, contradicting appellant's forgery claim (Paras 11-12). D) Evidence Law - Document Proof - Bankers' Books Evidence Act, 1891 and Section 73 Indian Evidence Act, 1872 - Certified copy of specimen signature from bank is admissible without formal proof under Bankers' Books Evidence Act - Appellant could have procured such copy and requested court to compare signatures under Section 73 Evidence Act but failed to do so despite opportunity (Paras 15-16).
Issue of Consideration
Whether the appellate court erred in rejecting the application under Section 391 CrPC for taking additional evidence regarding handwriting comparison and service of notice
Final Decision
The Supreme Court dismissed the appeal, finding no infirmity in the impugned orders, and held that the appellate court was not required to assist the appellant in collecting defence evidence under Section 391 CrPC
Law Points
- Presumption under Section 118 of Negotiable Instruments Act
- 1881
- Rebuttable nature of presumptions under NI Act
- Power to record additional evidence under Section 391 CrPC
- Admissibility of certified copy under Bankers' Books Evidence Act
- 1891
- Court's power to compare handwriting under Section 73 of Indian Evidence Act
- 1872
