"Leads To Unending Process": Kerala High Court Flags Attempts By Accused To Delay Trial In Cheque Dishonour Cases
The Kerala High Court has cautioned against the delaying tactics used by the accused to prolong the proceedings under Section 138 of the Negotiable Instruments Act such as seeking forensic examination of the cheque and seeking expert opinions by summoning and examining private handwriting experts.
In the facts of the case, the cheque was sent to the Forensic Science Laboratory in Kerala at the request of the accused. Dissatisfied with the report, he wants to send it to the Central Forensic Science Laboratory. The accused also wants to summon and examine a private handwriting expert.
Justice Bechu Kurian Thomas stated that the Trial Court has the authority to reject vexatious applications filed by the accused to delay the proceedings, rather than blindly sending the cheques for forensic examination.
“Of late, courts have been witnessing attempts to delay the conclusion of trials especially in cases arising under section 138 of the N.I Act. One of the easiest ways to protract such proceedings is to request the cheque to be sent for expert opinion. Though bonafide applications ought not to be rejected on the grounds of delay, when the court is satisfied that an application is vexatious or intended to delay the proceedings, certainly the trial court is entitled to reject such applications instead of meekly and blindly accepting the request for sending the cheque for forensic examination. The circumstances arising in each case ought to be appreciated by the trial court while arriving at such a conclusion.”
Background Facts
The petitioner is accused in seven complaints under Section 138 of the Negotiable Instruments Act for cheque dishonour.
The allegation against the petitioner is that he joined chitties with the defacto complainant and after the chitties were priced and disbursed to him, he defaulted in repaying the amounts. It is alleged that the cheques issued by the petitioner were returned as dishonoured due to insufficient funds when presented for encashment.
Proceedings were going before the Trial Court and the accused approached the High Court challenging three orders issued by the Magistrate.
The first order dismissed the application for sending the cheque to the Central Forensic Science Laboratory. The second order dismissed the application of the accused to summon a private person and to mark documents. The third order dismissed his application to issue a summons to the complainant to produce documents allegedly in his custody.
The Court noted that the matter is pertaining to a transaction of 2013. The Court further noted that the Kerala Forensic Science Laboratory found that the signature on the cheque belonged to the accused. The Court observed that the petitioner wants to examine a private handwriting expert, from whom he has obtained a report, and is requesting the Court to issue a summons.
The Court stated that there were no bonafides in sending the cheques to the Central Forensic Science Laboratory when the experts at the Kerala Forensic Science Laboratory were not examined.
“However, once a report was elicited from an expert through the process of court, it is not open for a party, that too in a private complaint under section 138 of the NI Act, to keep using the process of the court to obtain another report, without even setting aside the first report. Repeated references to experts through court, for their opinion, when the report already obtained is unfavourable, is not a legally acceptable procedure to be resorted to in a trial. Otherwise, there will be no end to such requests and it can even lead to an unending process with repeated requests”, added the Court.
The Court further noted that when there is other evidence, like originals of cheques in the custody of the Court, it need not issue a summons to examine a private handwriting expert at the request of the petitioner. It also noted that there was nothing that prevented the petitioner from examining him as his witness. The Court thus noted that the Magistrate rightly denied the permission to issue summons to a private summons.
Regarding the application seeking documents, the Court stated that the attempt of the petitioner was to question documents that had already been admitted.
As such, the Court dismissed the petitions filed by the petitioner.
Case Number: CRL.MC NO. 6977 OF 2024 & Connected Cases
Case Title: Santhosh K S v State of Kerala & Connected Cases
Citation: 2024 LiveLaw (Ker) 618