TMI Blog2022 (10) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... onus shifts upon the accused to rebut the presumption available in favour of the complainant under Section 138 of the Negotiable Instruments Act - The witness on behalf of the complainant unequivocally stated that the said name of Soumen is appearing in Exhibit-2 which was issued is not related to Chandra Gold. At the same time, PW1 stated in his cross examination that the signature of the accused/petitioner appears on the left side bottom of Exhibit-2. During cross examination of the accused three numbers of bills were confronted on behalf of the complainant with whom he admitted the signature on the said bills. This Court is not unmindful to note the provision contained in Section 20 of the Negotiable Instruments Act. However, when the complainant himself comes up with a document to establish the existing debt or liability, the question of raising presumption under Section 139 does not arise because in such a case the complainant does not depend upon the statutory presumption - where the complainant comes up with a document claiming to be executed by the accused confirming his existing debt or liability, complainant is under obligation to prove the said document beyond any re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing dishonoured complainant issued legal notice to the petitioner requiring him to pay the said amount in discharge of his debt or existing liability however, the said demand notice was returned with postal endorsement not claimed . Subsequently, the complainant filed the complaint under Section 138 of the Negotiable Instrument Act before the learned Chief Metropolitan Magistrate at Calcutta which was registered as C-7703 of 2010. It is pertinent to mention that the aforesaid case is pending for trial before the learned Metropolitan Magistrate, 5th Court at Calcutta. 4. During trial one Dipak Dey as power of attorney holder of the complainant deposed as PW1. During his examination in chief PW1 filed a bill being No.4136 dated 19th January, 2010 for the amount of Rs.60,59,387/-. The said bill was marked as Exhibit-2 during trial of the case. 5. Exhibit-2 was filed in order to prove the existing debt or liability of the accused/petitioner. PW1 also stated in oath that the accused/petitioner issued the cheque in question for the discharge of the existing debt or liability. 6. Veracity of Exhibt-2 was challenged by the accused in course of cross examination of PW1. It was de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atures on Exhibit-7, 8 and 9 are not by the same person who signed Exhibit-2. Therefore, the petitioner prayed for examination of the signature appearing on Exhibit-2 with the admitted signature of the petitioner appearing on Exhibit-7, 8 and 9. 9. Mr. Bhattacharya, learned Advocate for the opposite party, on the other hand submits that the petitioner filed the said application for examination of the signature appearing on Exhibit-2 and Exhibit-7, 8 and 9 by the handwriting expert only to drag the trial. It is submitted by Mr. Bhattacharjee that Section 139 of the Negotiable Instrument Act raises a presumption of law that cheque duly drawn was in discharge of debt or liability. The petitioner did not deny his signature on the cheque in question. On the other hand, it was stated by the petitioner that a blank cheque was issued in favour of the complainant as a security in relation to business transaction between the petitioner and the opposite party. However, in view of the provision contained in Section 20 of the Negotiable Instrument Act, the petitioner shall be liable by such instrument, in the capacity in which he signed the same, to any holder in due course for such amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant revision. It is pertinent to note that the complainant in order to discharge his/her initial burden produce bill No.4136 dated 19th January, 2010 and claimed that in discharge of his existing debt or liability, the petitioner had issued the said cheque for an amount of Rs.60,59,387/-. The said bill has been exhibited during trial. 13. The petitioner disputed the authenticity of the said cheque on the grounds that firstly, the said bill was issued in the name of Chandra Jewellers c/o Soumen. The complainant does not know Soumen. PW1 does not know whether Soumen is an employee of Chandra Jewellers. From the petition of complaint it is found that one Sunil Chandra is the proprietor of Chandra Jewellers. The witness on behalf of the complainant unequivocally stated that the said name of Soumen is appearing in Exhibit-2 which was issued is not related to Chandra Gold. At the same time, PW1 stated in his cross examination that the signature of the accused/petitioner appears on the left side bottom of Exhibit-2. During cross examination of the accused three numbers of bills were confronted on behalf of the complainant with whom he admitted the signature on the said bills. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.. 16. Section 47 of the Indian Evidence Act states that opinion of a handwriting expert or any person who is acquainted with the handwriting of the person by whom it is supposed to be written or signed are admissible. 17. According to Section 67 of the Evidence Act, if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting as alleged to be in that person s handwriting must be proved to be in his handwriting. Recourse to Section 73 can only be taken when handwriting has not been proved by any independent evidence or other evidence. It is important to note that Section 73 does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act it is clear that it can be made by handwriting expert under Section 45 or by anyone familiar with the handwriting under Section 47 or by the court itself. 18. In State (Delhi Administration) vs. Pali Ram reported in (1979) 2 SCC 158, the Hon ble Supreme Court raised a word of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter shifts on to the complainant to prove his case. The ratio laid down in Narayana (Supra) is where the case of the complainant is based on statutory presumption under Section 139 of the Negotiable Instruments Act. However, where the complainant comes up with a document claiming to be executed by the accused confirming his existing debt or liability, complainant is under obligation to prove the said document beyond any reasonable doubt. When execution of the said document is disputed by the accused and the accused admitted his signature on some other documents produced by the complainant during his cross examination, court is required to obtain expert opinion comparing the said two documents for just decision of the case. The complaint cannot raise any objection pleading, that statutory presumption under Section 139 is available in favour of the holder of the cheque. 20. Under the piquant factual background and in view of the discussion made hereinabove, I have no other alternative but to hold that the impugned order dated 27th September, 2021 suffers from inherent illegality and material irregularity and the said order is liable to be set aside. 21. Accordingly, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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