Who bears the burden of rebutting the presumptions under the NI Act?
Coram: Justice Sandeep Mehta · Justice B.R. Gavai
Code of Criminal Procedure, 1973 — s.391 — Additional evidence in appeal — When allowed — Held: Power to record additional evidence under Section 391 at the appellate stage is exercised only where the party, despite due diligence, was prevented from leading it at trial, or the facts emerged later, and its non-recording would occasion a failure of justice. Negotiable Instruments Act, 1881 — s.118 — Presumptions — Burden to rebut on the accused — Held further: The presumptions under the NI Act operate in favour of the complainant; the accused must rebut them by leading his own defence evidence, and the court cannot be expected to assist him in collecting that evidence. Indian Evidence Act, 1872 — s.73 — Proof of signature — Opportunity not availed — Held further: The accused could have obtained a certified copy of his specimen signature and sought comparison under Section 73, or questioned the bank witness, but did not; his belated application was rightly refused. Appeal dismissed.
When can additional evidence be recorded under Section 391 CrPC at the appellate stage?
Only where the party was prevented, despite due diligence, from leading the evidence at trial, or the facts came to light later, and non-recording would lead to a failure of justice.
Who bears the burden of rebutting the presumptions under the NI Act?
The accused. The presumptions under Section 118, and Section 139, operate in favour of the complainant, and the accused must rebut them by leading his own defence evidence.
Can the court collect defence evidence on the accused's behalf?
No. It is for the accused to lead evidence to rebut the statutory presumptions; the court cannot be expected to assist the accused in collecting his defence evidence.
How could the accused have proved the alleged mismatch of his signature?
By procuring a certified copy of his specimen signature from the bank, admissible under the Bankers' Books Evidence Act, and seeking comparison under Section 73 of the Evidence Act, or by questioning the bank official.
What was the outcome?
The appeal was dismissed; there was no infirmity in refusing the application for additional evidence, as the accused had the opportunity at trial and did not avail it.
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Leave granted.
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’).
The appellant was prosecuted for the offence punishable under Narendra Prasad Section 138 of the Negotiable Instruments Act, 1881(hereinafter being referred to as ‘NI Act’) before the learned 1 Criminal Appeal@SLP(Crl.) No(s). 16641 of 2023 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”.
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.
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. 2 Criminal Appeal@SLP(Crl.) No(s). 16641 of 2023
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.
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.
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. 3 Criminal Appeal@SLP(Crl.) No(s). 16641 of 2023
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.
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.
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”.
There is a specific column no. 10 in the said written memo which reads as follows:- 4 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.
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; 5 Criminal Appeal@SLP(Crl.) No(s). 16641 of 2023 (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.”
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.
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. 6 Criminal Appeal@SLP(Crl.) No(s). 16641 of 2023
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.
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.
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 7 Criminal Appeal@SLP(Crl.) No(s). 16641 of 2023 order dated 13th June, 2019. The said order was never challenged and had thus attained finality.
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.
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.
Pending application(s), if any, shall stand disposed of. ………..………………………………J. (B.R. GAVAI) ……….……………………………….J. (SANDEEP MEHTA) New Delhi; January 29, 2024. 8
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