High Court of KeralaSingle Judge2023-01-12Petition dismissed

Sanandh A. Pisharadi v. Jayakrishnan R and State of Kerala

Case / Petition Number:CRL.M.C NO.245 OF 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN
Judgment Date: 2023-01-12
Court Decision / Holding: Petition (Crl.M.C. No.245 of 2023) dismissed; the interim order to quash CMP 872/2022 in CC 868/2017 is not warranted.
Final Disposition: Petition dismissed

Parties to the Case

Appellants / Petitioners

Sanandh A. Pisharadi

Respondents

Jayakrishnan R
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Benny Joseph
• M.B. Sandeep
• K. P. Sreeja
• Amal Stanly

Counsels for Respondents

• G. Sudheer

Case Synopsis & Summary

This Criminal Miscellaneous Case under section 482 CrPC challenges an interim order in CMP 872/2022 in CC 868/2017, pending before the Judicial First Class Magistrate Court-I, Muvattupuzha, for an offence under Section 138 of the Negotiable Instruments Act. The accused, Sanandh A. Pisharadi, seeks to quash the order on the ground that the court should have directed expert handwriting evidence to rebut presumptions under Section 139 NI Act. The Magistrate had rejected the request, relying on existing authorities, including a Kerala High Court decision that suggested handwriting proof was relevant where handwriting is disputed. The petitioner argues that, since PW1 testified that the cheque was in the accused’s handwriting and the cheque was a signed blank instrument, handwriting analysis is essential to establish authorship and defeat presumptions; the delay in seeking such opinion was not adequately justified. The Kerala High Court, however, relies on subsequent Supreme Court dicta, noting that details filled in a cheque by another person do not negate the presumption of liability, and that handwriting expert opinion is not a decisive requirement. Citing Oriental Bank of Commerce v. Prabodh Kumar Tewari and Bir Singh v. Mukesh, the court concludes that the applicant’s challenge is meritless, and accordingly dismisses the petition.

Provisions of Law Cited

Section 482, Code of Criminal ProcedureSection 138, Negotiable Instruments ActSection 139, Negotiable Instruments Act

Legal Doctrines & Maxims

Presumption under Section 139 NI Act cannot be easily rebutted; handwriting expert evidence is not alone determinative to rebut the presumption.
Where the accused admits issuing a signed cheque, the onus lies on the accused to rebut the presumption by cogent evidence of the manner in which the cheque reached the complainant.
Details filled in a cheque by someone other than the drawer are immaterial to the defence of debt liability; the presumption stands unless adequately rebutted by the accused.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant submits that the handwriting of the cheque is in dispute and a handwriting expert opinion is necessary to rebut the presumption under Section 139 NI Act, especially since PW1 testified that the cheque could have been filled by the accused. The petitioner relies on earlier Kerala High Court decisions (e.g., Crl.M.C. No.5312/2017) and Santhosh Mathew (2022 KHC 428) to justify reliance on handwriting evidence. It is argued that the matter was delayed for years and that compelling the opinion would aid the defence; recent Supreme Court dicta, however, have cast doubt on the necessity of such an opinion.

Contentions of Respondents

The respondents contend that the cheque bears the accused’s signature and that the presumption under Section 139 NI Act arises; the onus is on the accused to rebut with cogent evidence. They highlight Supreme Court guidance that handwriting details filled by another person need not negate the debt liability, and that requesting expert handwriting analysis after four years is an attempt to protract the trial. The petition is thus meritless and should be dismissed; reliance on older Kerala decisions is misplaced given newer jurisprudence.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Santhosh Mathew and another v. Santhosh and another	2022 (KHC) 428	Overruled	High Court notes that subsequent Supreme Court decisions render this Kerala High Court decision non-binding in the present context.
Bir Singh v. Mukesh	2019(1) KHC 774	Positive	Held that even a blank cheque leaf voluntarily signed would attract presumption under Section 139 NI Act; used to support the presumption framework.
Oriental Bank of Commerce v. Prabodh Kumar Tewari	2019(5) KHC 560(SC)	Positive	SC held that details filled by someone else are immaterial to the defence; presumption cannot be rebutted solely by handwriting testimony.
Crl.M.C. No.5312/2017	—	Mentioned Only	Earlier decision cited by counsel; not binding in light of later Supreme Court dicta.
Santhosh Mathew and another v. Santhosh and another	2022 (KHC) 428	Overruled	Repeatedly noted as overruled by subsequent higher authorities.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 12[TH] DAY OF JANUARY 2023 / 22ND POUSHA, 1944** **CRL.MC NO.245 OF 2023** **TO QUASH THE INTERIM ORDER IN C.M.P.No.872/2022 IN C.C. NO.868/2017 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MUVATTUPUZHA.** ## **PETITIONERS/ACCUSED:** SANANDH A.PISHARADI, AGED ABOUT 30 YEARS, S/O.ACHUTHA PISHARADY, AMBALAYAM HOUSE, MULAVOOR KARA, MULAVOOR P.O., ERNAKULAM, PIN – 686673. BY ADVS. BENNY JOSEPH M.B.SANDEEP K.P.SREEJA AMAL STANLY ## **RESPONDENTS/COMPLAINANT & STATE:** 1 JAYAKRISHNAN.R, AGED 27 YEARS, S/O.RAMACHANDRAN NAIR, KEEZHETHU HOUSE, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM, PIN – 686669. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. BY ADV. SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.M.C. No.245 of 2023** 2 **==> picture [164 x 11] intentionally omitted <==** ## **Dated, this the 12[th] January, 2023** This is a petition filed under Section 482 of the Code of Criminal Procedure by the petitioner, who is the accused in CMP No.872/2022 in C.C.No.868/2017 dated 16.11.2022 on the files of Judicial First Class Magistrate Court-I, Muvattupuzha, where the accused alleged to have committed offence punishable under Section 138 of the Negotiable Instruments Act. 2. Heard the learned counsel for the petitioner on admission. 3. It is submitted by the learned counsel for the petitioner that when PW1 was crossexamined suggesting that Ext.P1 cheque along with the other three blank signed cheques were handed over to the complainant,(PW1), and PW1 himself had written the name, date and amount in the cheque and presented the cheque for ## **Crl.M.C. No.245 of 2023** 3 collection, PW1 given evidence that Ext.P1 cheque was written and signed by the accused at the office cabin of the accused. Relying on this evidence, it is argued that the specific case of the accused is that the cheque was issued as a blank signed one as security. According to the learned counsel for the petitioner, since the complainant had given evidence that the cheque was written in the handwriting of the accused, an expert opinion to ascertain whether the accused had written the cheque in his own hand writing is very much essential to rebut the presumptions in favour of the complainant. 4. The learned counsel for the petitioner placed decision of this Court in Crl.M.C. No.5312/2017 dated 04.10.2017 in support of this contention. In the said decision, it was held that when the accused denies the handwriting in the cheque as that of him and ## **Crl.M.C. No.245 of 2023** 4 the complainant asserts that the same, it is necessary in the interests of justice to get expert opinion. 5. Going by the order, the learned Magistrate relied on the decision reported in [2022 (KHC) 428] _**Santhosh Mathew and another**_ _**v. Santhosh and another,**_ wherein it was held that _when it is admitted by the accused that he has issued the cheque voluntarily and duly signed proof of authorship of handwriting by which the entries in the disputed cheque have been filled up is irrelevant. The proof of authorship of handwriting by which the entries in the disputed cheque have been filled up is irrelevant, when it is admitted by the accused as issued duly signed and voluntarily. The onus lies on the accused in such a context to rebutt the presumption by establishing that the disputed signed cheque has reached the hands of the complainant in a manner different from that_ **Crl.M.C. No.245 of 2023** 5 _alleged by the complainant_ . 6. Further in the decision reported in [2019(1) KHC 774] _**Bir Singh v. Mukesh,**_ it was held that _even a blank cheque leaf voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments_ _Act, in the absence of any cogent evidence to show that, the cheque was not issued in discharge of a debt._ Relying on the above decisions, the learned Magistrate dismissed the application. 7. In this context, it is relevant to note that PW1 was examined as early as on 13.09.2018. No application filed by the accused to send the cheque for getting expert opinion, till 2022. The learned Magistrate also noted this fact. Thus, it appears that _prima facie_ the present application has been filed at a much belated stage, even after getting the 6 ## **Crl.M.C. No.245 of 2023** defence evidenced by examining the accused as DW1. 8. That apart in the decision of the Apex Court reported in [2022(5) KHC 560(SC)], ## _**Oriental Bank of Commerce v. Prabodh Kumar**_ _**Tewari**_ **,** it has been held as under: _“17. .., the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability.”_ 9. In view of the latest decisions of the Apex Court discussed above, the decision highlighted by the learned counsel for the petitioner in Crl.M.C. No.5312/2017 has no binding effect. That apart, no purpose will be served by sending the cheque for getting expert ## **Crl.M.C. No.245 of 2023** **==> picture [7 x 9] intentionally omitted <==** opinion, that too in an application filed after four years of examination of PW1, the said attempt is nothing but to protract the trial further. In view of the above, this petition found to be meritless and is, accordingly dismissed. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww 8 ## **Crl.M.C. No.245 of 2023** ## **APPENDIX OF CRL.MC 245/2023** PETITIONER’S ANNEXURES: ANNEXURE A1 A TRUE COPY OF THE COMPLAINT DATED 28.03.2015 OF JFCM COURT, KOLENCHERY. ANNEXURE A2 READABLE COPY OF THE DEPOSITION OF PW1 BEFORE THE JFCM COURT-1, MUVATTUPUZHA DATED 13.09.2018. ANNEXURE A3 CERTIFIED COPY OF THE ORDER OF THE JFCM COURT-I, MUVATTUPZUHA IN C.M.P NO. 872/2022 DATED 16.11.2022.