The drawer has given stop payment and also is denying the signature on the check

[Dr.Mohit Hegde]

Sir ,
The drawer has given stop Payment for the cheque and the same have been returned by his banker with remarks “ stop payment “
But on the court trail the drawer is contesting that the signature and details filled does not belong to him.

While we have submitted the legal debt of the drawer and have the grounds of stop payment with insufficient funds , can the judge decide to go for The forensic of the cheque under consideration.

Please advise

[Dr. Ashok Dhamija]

Obtaining forensic science or handwriting expert’s opinion is not the only method to prove that the impugned / disputed signatures are those of a particular person. Of course, this is one of the methods.

There are other methods also to prove signatures of a person. Three such other methods are laid down in Section 47 of the Evidence Act, which is as under:

“47. Opinion as to handwriting, when relevant.—When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation.—A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

Illustration

The question is, whether a given letter is in the handwriting of A, a merchant in London.

B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising with him thereon.

The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.”

So, this section makes it clear – the opinion / evidence of any person acquainted with the handwriting of the drawer of the cheque who has signed the cheque, can also be given in court. And, a person can be acquainted with the handwriting / signature of another person in one of the THREE ways mentioned in the Explanation in this section, as can be seen from the above.

In addition to these methods, there is yet another method by which the signatures of a person can be proved. This is laid down in Section 73 of the Evidence Act, which empowers the court itself to compare the impugned / disputed signatures with some other admitted or proved signatures of the same person (which are generally called specimen signatures and the court also has the power to ask such person to give his specimen signatures when he is present in court):

“73. Comparison of signature, writing or seal with others admitted or proved.—In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

This section applies also, with any necessary modifications, to finger-impressions.”

To give an example, in the case of L.C. Goyal v. Suresh Joshi, (1999) 3 SCC 376, the Supreme Court itself examined and compared the admitted signature of the appellant with his admitted signature and found striking similarity between the admitted signature and that of the disputed one. In these circumstances, the Supreme Court held that there was no need for an opinion of a handwriting expert.

On the other hand, in another case, in Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258, the appellant / accused had made written application for sending the cheque in question for the opinion of the handwriting expert (on the ground that the signatures on the cheque were not hers) after the respondent had closed her evidence. In that case, the Supreme Court held that the Magistrate should have granted such a request unless he thought that the object of the appellant was vexation or delaying the criminal proceedings.

So, it all depends on the facts and circumstances of each case. As I mentioned above, there are various methods of proving the signatures of a person on a document (including on the cheque) and one of the methods is to obtain expert’s opinion by sending the cheque for forensic examination. But, it is not a hard and fast rule. It all depends on the facts and circumstances of the case and if the court is satisfied about the genuineness or otherwise of the signatures by way of another method, then it is not mandatory for it to send for forensic examination. But, if there is a doubt (whether after or before the use of other methods of proving it) in the mind of the court, it can send it for forensic examination.

     

---

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr.Mohit Hegde]

Sir ,

🙏🙏🙏🙏
Thank you for the quick response on the conditions under which the cheque’s Signature issued would be verified by the court . Thank you for explaining the same in length.

My question to you here is whether under a stop payment of the cheque by the drawer , with the verification that the funds where insufficient , will his reason for the stop payment ( signature mismatch ) have any challenge to try the case under 139 where the Supreme Court has given direction in the electronic trading case that once the drawer issues the order for stop payment and he has not paid after the notice period , it’s the burden on the drawer to prove his innocence on the legal liability.
And in the process of defence can he ask for forensic of the cheque or the judge will look at all the evidence the complainant has provided to prove the liability.

Thank you for your quick response 🙏🙏

[Dr. Ashok Dhamija]

The presumption under Section 139 of the Negotiable Instruments Act will be raised by court as applicable. However, please note that this presumption is only for the issue that the cheque duly drawn was for the discharge, in whole or in part, of any debt or other liability.

However, there are other ingredients too for proving the case under Section 138 of the Act. Moreover, the aforesaid presumption raised under Section 139 can be rebutted by the accused, and one of the ways to do so is to deny the signatures on the cheque. Therefore, the issue whether the signatures on the cheque are those of the accused, may still be relevant despite presumption under Section 139, if the accused denies his signatures on the cheque.

I have already replied in detail to the last issue raised by you, i.e., whether the defence can ask for forensic examination or the judge will look at evidence available on the issue.     

---

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Dr.Mohit Hegde]

dear sir ,

The accused has filed for conversion of summons case to a warrant case before plea in the trail court , I would like to know in case the court allows the conversion whether the interim relief of 20% which is applicable to the complainant in a cheque bounce case will continue in case of a warrant trail.

thanks in advance

[Author]

Posts