[S.73 Evidence Act] Trial Court Is Empowered To Compare Disputed Handwriting In Cheque Dishonour Cases: Kerala High Court
The Kerala High Court held that a Trial Court can compare the disputed handwriting and prove the handwriting of a person in a case where the accused had already admitted his signature in a cheque dishonour case.
In the present case, the accused was charged under Section 138 of the Negotiable Instruments Act and had claimed that while the signature on the offending cheque was his, the contents on the cheque were not filled by him
Justice K. Babu invoked the trial court's power under Section 73 of the Evidence Act, and held: “Therefore if the accused makes a request for comparison of his admitted or proved writings with disputed writings, the Trial Court shall invoke Section 73 of the Evidence Act.”
The petition was filed challenging the trial court's order allowing the accused to send his handwriting for forensic analysis. He was alleged of committing an offence under Section 138 of the Negotiable Instruments Act.
The petitioner submitted that in Oriental Bank of Commerce v Prabodh Kumar Tiwari (2022), where the issue was regarding sending a disputed cheque to a forensic laboratory for expert analysis was being considered, the Supreme Court had held that if a drawee signs a cheque and hands it over to the payee, the drawer is presumed to be liable unless he can show that the cheque was not issued towards payment of a debt or discharge of a liability.
The petitioner submitted that considering the matters pending before the Forensic Science Laboratory, it might take years to get a report. This would unnecessarily delay the proceedings.
The Court accepted the argument of the petitioner considering the accused did not even reply to the notice petitioner sent.
The High Court thus set aside the order of the Magistrate. It was however held that the trial court can compare the admitted handwriting and that in the cheque if the accused makes any such application.
Counsel for Petitioner: Advocates T. N. Suresh, Monsy K. V., Dhanuja Vettathu, Korah Joy
Counsel for Respondents: Advocates Denizen Komath, Ramzy Bin O. A, Dean Denizen Komath, Megha Madhavan, Ganga S.
Case No: OP (Crl.) No 533 of 2021
Case Title: Tomy T. J. v State of Kerala and Another
Citation: 2024 LiveLaw (Ker) 500