Ajitsinh Chehuji Rathod vs The State Of Gujarat

2024 INSC 63 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2024 (Arising out of SLP(Crl.) No(s). 16641 of 2023)

AJITSINH CHEHUJI RATHOD ….APPELLANT(S)

VERSUS

STATE OF GUJARAT & ANR. ...RESPONDENT(S)

JUDGMENT

Mehta, J.

1. Leave granted.

2. The instant appeal by special leave filed 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 Signature Not Verified

under Digitally signed by Narendra Prasad Section 138 of the Negotiable Instruments Act, Date: 2024.01.29 18:29:37 IST Reason:

1881(hereinafter being referred to as ‘NI Act’) before the learned

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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 insufficient funds and account

dormant”.

4. During the course of trial, the appellant preferred an

application dated 13th June, 2019 before learned trial Court with

a prayer to send the cheque to the handwriting expert for

comparison of the handwriting as well as signature appearing

thereon with a plea that his signatures had been forged on the

cheque in question. The learned trial Court rejected the

application vide order dated 13th June, 2019 itself observing that

the application was aimed at delaying the trial. The learned trial

Court further observed that the matter was at the stage of defence

and the accused could lead evidence to prove his claim pertaining

to mismatch of signatures.

5. The order dated 13th June, 2019 passed by learned trial Court

was not challenged any further and thus the same attained

finality. The trial Court, proceeded to convict the accused

appellant vide judgment dated 7th November, 2019.

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6. The appellant preferred an appeal before the Principal

Sessions Judge, Gandhinagar and during pendency thereof, he

filed an application under Section 391 CrPC for taking additional

evidence at appellate stage and seeking a direction to obtain the

opinion of the handwriting expert after comparing the admitted

signature of the accused appellant and the signature as appearing

on the disputed cheque. Another prayer made in the said

application was that the concerned officer from the Post Office

should be summoned so as to prove the defence theory that the

notice 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.

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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

additional evidence under Section 391 CrPC should only be

exercised when the party making such request was prevented 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 non-

recording of such evidence may lead to failure of justice.

10. It is apposite to mention that the learned first appellate

Court, i.e., the Principal Sessions Judge, Gandhinagar had taken

note of the fact that during the trial, the appellant examined the

witness of the Bank of Baroda in support of his defence but not a

single question was put to the said witness regarding genuineness

or otherwise of the signatures as appearing on the cheque in

question.

11. Furthermore, as per the cheque return memo of the Bank

dated 26th February, 2018, the reason for the cheque being

returned unpaid is clearly recorded as “funds insufficient and

account dormant”.

12. There is a specific column no. 10 in the said written memo

which reads as follows:-

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Criminal Appeal@SLP(Crl.) No(s). 16641 of 2023

“Bank of Baroda (HEAD OFFICE MANDVI, BARODA) Infocity Branch Date: 26.02.2018 Cheque No. 503273 for Rs. 10,00,000/- returned unpaid for reason No. 22 3093010008596 1-9 ….

10 Drawer’s signature differs from specimen recorded with us.

11-22….”

Manifestly, the cheque was not returned unpaid for the

reason that the signature thereupon differed from the specimen

signature recorded with 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 maturity;

(d) as to time of transfer: that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of indorsements: that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) as to stamps: that a lost promissory note, bill of exchange or cheque was duly stamped;

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(g) that holder is a holder in due course: that the holder of a negotiable instrument is a holder in due course:

Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.”

14. Section 118 sub-clause (e) of the NI Act provides a clear

presumption regarding indorsements made on the negotiable

instrument being in order in which they appear thereupon. Thus,

the presumption of the indorsements on the cheque being genuine

operates in favour of the holder in due course of the cheque in

question which would be the complainant herein. In case, the

accused intends to rebut such presumption, he would be required

to lead evidence to this effect.

15. 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.

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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 appellant

did not put any question to the bank official examined in defence

for establishing his plea of purported mismatch of signature on the

cheque in question and hence, we are of the firm opinion that the

appellate Court was not required to come to the aid and assistance

of the appellant for collecting defence evidence at his behest. The

presumptions under the NI Act albeit rebuttable operate in favour

of the complainant. Hence, it is for the accused to rebut such

presumptions by leading appropriate defence evidence and the

Court cannot be expected to assist the accused to collect evidence

on his behalf.

18. The appellant had sought for comparison of the signature as

appearing on the cheque through the handwriting expert by filing

an application before the trial Court which rejected the same vide

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order dated 13th June, 2019. The said order was never challenged

and had thus attained finality.

19. So far as the allegation of the accused appellant that he did

not receive the notice under Section 138 of the NI Act is concerned,

it would be for the appellate Court while deciding the appeal to

examine such issue based on the evidence available on record and

thus, there was no requirement for the appellate Court to have

exercised power under Section 391 CrPC for summoning the

official from the Post Office and had rightly rejected the application

under Section 391 CrPC.

20. As an upshot of the above discussion, we find no infirmity in

the impugned orders warranting interference. The appeal lacks

merit and is dismissed as such.

21. Pending application(s), if any, shall stand disposed of.

………..………………………………J. (B.R. GAVAI)

……….……………………………….J. (SANDEEP MEHTA) New Delhi;

January 29, 2024.

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