A forged cheque is not unusual
V. PASUPATHI
THE ARTICLE "Bounced cheques" (Open Page, January 28) makes interesting reading. The writer referred to a "recent judgment" of the Supreme Court in a cheque bounced case. Matched with the facts, the judgment appears to be Mrs. Kalyani Baskar v Mrs. M.S. Sampooranam. This is reported in 2007(135) Company Cases on page 197.
On going through the judgment in full, one will find that the emphasis in the ruling is on "fair trial" where the accused (drawer) must be afforded all opportunities available under law and where the court finds that the request of the accused is not "vexation or delaying the criminal proceedings."
Therefore, it is clear that the court must be satisfied about the prima facie bona fides in the claim of the accused (drawer) and grant any prayer thereof and not as a matter of routine.
The facts of the case briefly are: the accused drawer raised her objection before the magistrate at the first instance on entering appearance in the case that the signature on the cheque was not hers and pleaded that the cheque be sent to an expert for ascertaining its genuineness.
The other objections, at that time itself, were (1) the cheque related to an individual account which could not have been signed by the accused and her husband jointly and (2) neither the accused nor her husband owed any money to the complainant. A petition u/s. 245 CrPC was also filed for the discharge of the accused. The court negatived the preliminary contentions of the accused holding that such objections can be decided during the trial. The banker of the impugned cheque also admitted that the genuineness of the signature was not verified at the time of return.
At this stage, the accused again moved the court in an application u/s. 243 CrPC (evidence for defence) to send the cheque for an expert's opinion. The request was also turned down by the magistrate holding that (i) it was not mandatory that every disputed document or signature be referred to an expert; (ii) original document filed in court cannot be sent out for any purpose and that (iii) documents must be kept in safe custody of the court till the disposal of the case.
The Criminal Revision petition filed before the Madras High Court was also dismissed. Hence, the accused moved the Supreme Court. The Supreme Court said that the opinion of an expert would be helpful to the magistrate in arriving at a conclusion about the signature. The expert's opinion would simultaneously provide a valuable opportunity to the accused to rebut the legal presumption of liability under sec.138 of the Negotiable Instruments Act. The denial of such an opportunity to the accused would not be equal to a "fair trial." A fair trial includes all opportunities as provided under law to prove innocence of the accused.
The writer of the article has not considered the legal rights of an accused to prove his/her innocence against a legal presumption under sec.138 of the Negotiable Instruments Act. He is more concerned about an ideal circumstance in which a cheque is drawn and paid without admitting the ground realities that a forged cheque is not unusual in unethical and revengeful situations, for a proved offence attracts imprisonment sufficient to blast one's self-esteem. The call to accountancy and corporate bodies about the impact of the "recent judgment" is surely misdirected.
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