Kerala High Court Allows Handwriting Test Of Disputed Cheques In PTB Chits Cheque Dishonour Cases

The Kerala High Court on 29 June held that an accused facing prosecution for cheque dishonour under Section 138 of the Negotiable Instruments Act, 1881 cannot be denied an opportunity to seek expert handwriting examination of a disputed cheque when the complainant specifically claims that the accused personally filled the cheque entries.

Justice G. Girish considered petitions filed by PTB Chits Private Limited and its directors challenging orders of the Judicial First Class Magistrate Court, Taliparamba, which rejected their applications seeking forensic examination of disputed cheques, and set aside the Magistrate's orders. He observed:

“However, in a case where the complainant comes forward with the definite contention that the accused wrote the entries in the impugned cheque in his handwriting and signed it in front of the complainant, the accused cannot be denied an opportunity to show that the aforesaid contention of the complainant is wrong.”

The petitions arose from two cheque dishonour cases. In one case, the complainant alleged that a Rs. 4 lakh cheque issued towards disbursement of a chitty amount was dishonoured after stop payment instructions were issued.

In the other case, the complainant alleged that the petitioners issued a Rs. 4 lakh cheque towards refund of money allegedly collected on the promise of appointing him as a Director. The cheque was also dishonoured after stop payment instructions.

During the defence stage, the accused sought expert handwriting analysis of the disputed cheques to establish that the entries were not made in their handwriting. After the Magistrate rejected their applications, they approached the High Court.

The Court observed that ordinarily, the authorship of handwriting on a cheque may have little relevance once its execution is proved. However, it held that the issue assumes significance when the complainant specifically asserts that the accused filled the cheque entries in his own handwriting. It noted that in one case, the complainant stated during cross-examination that the cheque entries were made in the handwriting of the accused and expressed readiness to prove the same. In the other case, the complainant stated in his proof affidavit that the second accused filled up the cheque in his presence.

Referring to the complainant's assertions in both cases, the Bench observed:

“Having regard to the above nature of the contention raised by the respondent/complainant, the question whether the handwritings in the impugned cheques are that of the accused, is having great relevancy.”

The Court further held that if expert examination established that the handwriting on the cheques did not belong to the accused, it would cast doubt on the complainant's evidence regarding the execution of the cheques. It added:

“When viewed in the above perspective, the accused cannot be denied an opportunity to show that the handwritings in the impugned cheques are not that of the accused, and hence the evidence adduced by the complainant in the above regard, is vitiated for lack of bonafides.”

Lastly, the Bench clarified that the accused must provide specimen handwriting for comparison and bear the expenses of the expert examination. It also stated that if the accused failed to provide specimen handwriting within a reasonable time, the trial court could proceed with the cases based on the available evidence.

Accordingly, the High Court directed that the disputed cheques be sent for expert examination to determine whether the entries were in the handwriting of the accused.

For Petitioners: Advocates M Anuroop, M Devesh, Murshid Ali M and Jyothis Mary

For Respondent: Advocates Aswanth P.T and Manuel P.J