TMI Blog2024 (2) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that nonrecording of such evidence may lead to failure of justice. Certified copy of a document issued by a Bank is itself admissible under the Bankers Books Evidence Act, 1891 without any formal proof thereof. Hence, in an appropriate case, the certified copy of the specimen signature maintained by the Bank can be procured with a request to the Court to compare the same with the signature appearing on the cheque by exercising powers under Section 73 of the Indian Evidence Act, 1872 - if at all, the appellant was desirous of proving that the signa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led at the behest of the appellant accused calls into question the order dated 25th October, 2023 passed by the High Court of Gujarat rejecting the Criminal Misc. Application No. 17933 of 2023 preferred by the appellant under Section 482 read with Section 391 of the Code of Criminal Procedure, 1973(hereinafter being referred to as CrPC ). 3. The appellant was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881(hereinafter being referred to as NI Act ) before the learned trial Court with an allegation that the cheque to the tune of Rs. 10 lakhs issued by the appellant in favour of the complainant Shri Mahadevsinh Cahndaasinh Champavat upon being presented in the bank was dishonoured for insuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under Section 138 of NI Act was never received by the accused appellant. 7. Such application preferred by the appellant was rejected by the learned Principal Sessions Judge, Gandhinagar vide detailed order dated 25th July, 2023, which was carried by the appellant to the High Court by filing the captioned Criminal Misc. Application No. 17933/2023 which came to be dismissed by order dated 25th October, 2023 which is under challenge in this appeal. 8. We have considered the submissions advanced by learned counsel for the appellant and have gone through the impugned order and the material placed on record. 9. At the outset, we may note that the law is well-settled by a catena of judgments rendered by this Court that power to record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank. 13. Section 118 of the NI Act has a bearing upon the controversy and is thus, reproduced hereinbelow:- 118. Presumptions as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made: (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the certified copy of the specimen signature maintained by the Bank can be procured with a request to the Court to compare the same with the signature appearing on the cheque by exercising powers under Section 73 of the Indian Evidence Act, 1872. 16. Thus, we are of the view that if at all, the appellant was desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque. 17. However, despite having opportunity, the accused appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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