Balkar Singh v. M/S Mukundi Lal And Company




   
 

















 

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17. For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability.

18. Undoubtedly, it would be open to the respondents to raise all other defenses which they may legitimately be entitled to otherwise raise in support of their plea that the cheque was not issued in pursuance of a pre-existing debt or outstanding liability.

19. In the circumstances, the appeal is allowed and the impugned order of the Single Judge of the Delhi High Court dated 24 July 2019 is set aside. The report which has been received in pursuance of the impugned order dated 24 July 2019 shall not be taken into consideration during the course of trial."

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.Having come to the above conclusion, it has to be considered whether the findings in Prabodh Kumar Tewari (supra) has the effect of completely taking away the accused 's right to seek expert opinion, even in cases where the complainant asserts that the cheque was filled up and signed by the accused in his presence. In this regard, it is pertinent to note that in Prabodh Kumar Tewari (supra), the cheque was issued for and on behalf of a Private Limited Company and the accused had sought expert opinion for proving that the cheque was not handed over for the purpose stated in the complaint. It was in the above factual background that the Apex Court hold the opinion of the handwriting expert on whether the accused had filled the details in the cheque to be

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immaterial in determining the purpose for which the cheque was issued. Pertinently, the Apex Court also held that a drawer, who signs the cheque and hands it over to the payee, is presumed to be liable unless he adduces evidence to rebut the presumption.

8. As held in Nagappa T v. Y.R.Muralidhar [(2008) 5 SCC 633], even in a case where a presumption can be raised under Section 118(a) or 139 of the Act, opportunity must be granted to the accused to adduce evidence in rebuttal. By dismissing the petition under Section 243, the court below has denied that opportunity. The finding of the trial court that the opinion of the expert is only an opinion and the court is empowered to make a comparison on its own, as provided under Section 73 of the Evidence Act, does not justify denial of opportunity to rebut the presumption under Section 139 of the N.I. Act."  2
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