Case Note & Summary
The petitioner, Mr. Kishore Salian, filed a private complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent, Mr. N. P. Shenoy, alleging that cheques issued by the respondent were dishonoured. During the trial, the respondent denied his signatures on the cheques. The petitioner then filed an application under Section 45 of the Indian Evidence Act, 1872 seeking to send the cheques for handwriting expert opinion. The trial court, i.e., the Judicial Magistrate First Class, IV Court, Mangaluru, rejected the application by order dated 25.11.2022 in C.C.No.5686/2019. Aggrieved, the petitioner filed the present criminal petition under Section 482 of the Code of Criminal Procedure, 1973 (or Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023) before the High Court of Karnataka. The respondent was served but remained absent. The High Court observed that when the accused denies his signature on the cheque, it is a material fact that needs to be ascertained. The trial court's rejection of the application without considering the necessity of expert opinion was erroneous. The court allowed the petition, set aside the impugned order, and directed the trial court to send the disputed cheques to the handwriting expert for opinion and proceed with the case in accordance with law.
Headnote
A) Criminal Procedure - Negotiable Instruments Act - Section 138 - Dishonour of Cheque - Handwriting Expert - Section 45 Indian Evidence Act, 1872 - The complainant filed a private complaint under Section 138 of the Negotiable Instruments Act, 1881 alleging dishonour of cheques issued by the respondent. The respondent denied his signatures on the cheques. The complainant filed an application under Section 45 of the Indian Evidence Act, 1872 seeking to send the cheques for handwriting expert opinion. The trial court rejected the application. The High Court held that when the accused denies his signature, it is necessary to ascertain the truth by sending the cheques to a handwriting expert, and the trial court's rejection was erroneous. The petition was allowed and the trial court was directed to send the cheques for expert opinion. (Paras 1-5)
Issue of Consideration
Whether the trial court was justified in rejecting the complainant's application under Section 45 of the Indian Evidence Act, 1872 to send the disputed cheques for handwriting expert opinion, when the accused had denied his signatures on the cheques in a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The High Court allowed the criminal petition, set aside the order dated 25.11.2022 passed by the Judicial Magistrate First Class, IV Court, Mangaluru in C.C.No.5686/2019, and directed the trial court to send the disputed cheques to the handwriting expert for opinion and proceed with the case in accordance with law.
Law Points
- Section 45 of Indian Evidence Act
- 1872 allows court to seek expert opinion on disputed handwriting
- Section 138 of Negotiable Instruments Act
- 1881 requires proof of signature on cheque
- Trial court cannot reject application for expert opinion at preliminary stage without considering necessity
