AJITSINH CHEHUJI RATHODversusSTATE OF GUJARAT & ANR.

                 [2024] 1 S.C.R. 1083 : 2024 INSC 63

                        Ajitsinh Chehuji Rathod
                                   v.
                        State of Gujarat & Anr.
                     (Criminal Appeal No. 478 of 2024)
                              29 January 2024
               [B.R. Gavai and Sandeep Mehta*, JJ.]

                           Issue for Consideration
       Appellant-accused convicted u/s.138, Negotiable Instruments
       Act, 1881, had claimed mismatch of signatures on the cheque
       in question. His application for comparison of the signature as
       appearing on the cheque through the handwriting expert was
       rejected by trial court. High Court whether justified in dismissing
       the application filed by the appellant u/s.391, CrPC for taking
       additional evidence at appellate stage and seeking a direction to
       obtain the opinion of the handwriting expert.

                                  Headnotes
       Negotiable Instruments Act, 1881 – ss.118, 138 – Code of
       Criminal Procedure, 1973 – s.391 – Presumptions under the
       NI Act though rebuttable, operate in favour of the complainant
       – Accused to rebut such presumptions by leading evidence
       – Cheque dishonoured – Appellant convicted for offence
       punishable u/s.138 – Claiming mismatch of signatures,
       during the trial, the appellant had filed application seeking
       comparison of the signature as appearing on the cheque
       through the handwriting expert – Rejected by trial court –
       Order not challenged – At appellate stage, the appellant filed
       application u/s.391, CrPC for taking additional evidence and
       seeking a direction to obtain the opinion of the handwriting
       expert – Dismissed:
       Held: s.118 sub-clause (e) 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 – If 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
* Author
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    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
    u/s.73, Evidence Act, 1872 – However, in the present case,
    despite having opportunity, the 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 –
    Hence, the appellate Court was not required to come to the aid
    and assistance of the appellant for collecting defence evidence at
    his behest – Power to record additional evidence u/s.391, CrPC
    should only be exercised when the party making such request
    was prevented from presenting the evidence in the trial despite
    due diligence or the facts giving rise to such prayer came to light
    at a later stage during pendency of the appeal and non-recording
    of such evidence may lead to failure of justice – Furthermore, the
    appellant also did not challenge the trial court’s order rejecting
    his application for comparison of the signature as appearing on
    the cheque through the handwriting expert and thus, had attained
    finality – Impugned orders do not warrant interference. [Paras 14,
    15, 17, 9, 18 and 20]
    Code of Criminal Procedure, 1973 – s.391 – Power to record
    additional evidence – Exercise of – Discussed. [Para 9]
    Code of Criminal Procedure, 1973 – s.391 – Negotiable
    Instruments Act, 1881 – s.138 – Appellant-accused alleged
    that he did not receive the notice u/s.138 of the NI Act and
    the concerned officer from the Post Office be summoned to
    prove the same:
    Held: It would be for the appellate Court while deciding the appeal
    to examine such issue based on the evidence available on record
    – Thus, there was no requirement for the appellate Court to have
    exercised power u/s.391, CrPC for summoning the official from the
    Post Office and it rightly rejected the application u/s.391, CrPC.
    [Para 19]

                               List of Acts
    Negotiable Instruments Act, 1881; Code of Criminal Procedure,
    1973; Bankers’ Books Evidence Act, 1891; Evidence Act, 1872.
[2024] 1 S.C.R.                                                               1085

            Ajitsinh Chehuji Rathod v. State of Gujarat & Anr.


                              List of Keywords
     Cheque dishonour; Presumptions under Negotiable Instruments
     Act; Rebuttable; Indorsements made on negotiable instrument;
     Holder in due course; Mismatch of signatures; Comparison of the
     signature; Handwriting expert; Appellate stage, Additional evidence;
     Document issued by Bank; Certified copy; Specimen signature
     maintained by Bank; Bank official; Appellate Court; Failure of justice.

                             Case Arising From

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.478
     of 2024.
     From the Judgment and Order dated 25.10.2023 of the High Court
     of Gujarat at Ahmedabad in CRMA No.17933 of 2023.
                          Appearances for Parties
     Shariq Ahmed, Sunil Kumar Verma, Vinay Vats, Tariq Ahmed for
     M/s. Ahmadi Law Offices, Advs. for the Appellant.

                 Judgment / Order of the Supreme Court
                                     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 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
     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
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     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.
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.
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.
[2024] 1 S.C.R.                                                         1087

            Ajitsinh Chehuji Rathod v. State of Gujarat & Anr.


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:-
                                “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;
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          (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;
          (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.
[2024] 1 S.C.R.                                                          1089

            Ajitsinh Chehuji Rathod v. State of Gujarat & Anr.


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
    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.


     Headnotes prepared by: Divya Pandey   Result of the case: Appeal dismissed.