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2022 (5) TMI 1391 - HC - Indian LawsDishonor of Cheque - forgery of signature in the cheque - Rejection of application of the petitioner-accused to examine a handwriting expert in her defence - whether signatory of the cheque need to fill in the body of the cheque for the cheque to be a valid cheque? - proceedings initiated under section 138 of NI Act - HELD THAT:- A perusal of the judgments in T. NAGAPPA VERSUS Y.R. MURALIDHAR [2008 (4) TMI 789 - SUPREME COURT], would clearly establish that when a contention is raised that the complainant has misused the cheque by filling up the body of the same, even in a case, where a presumption can be raised under Section 118(a) or 139 of the Negotiable Instruments Act, an opportunity must be granted to the accused for adducing evidence in rebuttable thereof. As the law places burden on the accused, he must be given an opportunity to discharge it. The complainant will invariably not disclose that the body of the cheque has been filled up by him or at his instance even where the signatures on the cheque has been accepted by the accused. Without doubt, the holder of the cheque has the authority to fill the same and the cheque would be a valid instrument but to start with, the first step available with an accused to rebut the presumption that the cheque had been issued for the discharge of a legally enforceable debt is by examining a handwriting to testify that the signatory and the author of the body of the cheque are different persons. Even if the difference in writing is established, the accused will still have to rebut the presumption under the Act, that the cheque is a valid tender and that he had made the payment to the complainant but despite that fact, the complainant filled up the cheque and presented the same leading to it's dishonouring - On the other hand, if the permission to examine the handwriting expert is not permitted on the ground that the holder has the authority to fill the body of the cheque, then the accused cannot even begin to establish his defence that a cheque issued as security has been filled up by someone other than him and misused. Thus, it would be unfair to shut out the defence of the accused at the threshold. The judgment in T. Nagappa's case lays down the law more elaborately and accurately, which only reiterate the position of law that the signatory of the cheque need not filled in the body of the cheque for the cheque to be a valid cheque. The petitioner-accused shall examine the handwriting expert as a defence witness within a period of four weeks. The application of the petitioner-accused is allowed - petition allowed.
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