RAJESHBHAI MULJIBHAI PATEL AND OTHERS ETC. versus STATE OF GUJARAT AND ANOTHER ETC.

Citation: [2020] 2 S.C.R. 687 · Decided: 10-02-2020 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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RAJESHBHAI MULJIBHAI PATEL AND OTHERS ETC.
v.
STATE OF GUJARAT AND ANOTHER ETC.
(Criminal Appeal Nos. 251-252 of 2020)
FEBRUARY 10, 2020
[R. BANUMATHI AND A.S.BOPANNA, JJ.]
Negotiable Instruments Act, 1881 – ss.138 and 139 –
Appellant no.1 is real brother of respondent-accused in a criminal
case filed u/s.138 by their maternal uncle-appellant no.3 – Both
the brothers are residents of UK – Their father had agricultural
lands in India – In order to sell the same, accused called up appellant
no.3, who gave Rs.30,00,000/- each on four days to respondent
no.2 who issued receipts for and on behalf of accused – Accused
later informed appellant no.3 that he had already sold the aforesaid
lands to a company – Appellant no.3 demanded his legal outstanding
debt of Rs.1,20,00,000/- – Accused issued 4 cheques – Dishonoured
– Claim against 2 cheques is barred by limitation – Criminal case u/
s.138 concerns only 2 cheques – Appellant no.3 filed Summary Suit
for recovery of Rs.1,20,00,000/- based on four receipts – FIR
registered against appellants alleging forgery and fabrication of
the four receipts – Appellant nos.1-3 sought its quashing – Accused
also sought quashing of the criminal case filed against him u/s.138
– High Court declined to quash the FIR – Criminal case u/s.138
was quashed – Held: Four receipts filed in the suit were sent to
handwriting expert who opined that signatures therein did not tally
with respondent no.2’s sample signatures – It was only thereafter
that FIR was registered against the appellants – Based on sole
opinion of handwriting expert, the FIR ought not to have been
registered – When the issue as to the genuineness of receipts is
pending consideration in the civil suit, continuation of FIR would
prejudice the interest of parties and their stand in the civil suit –
Further, the accused admitted issuance of cheques – When once
the issuance of cheque is admitted/established, the presumption
would arise u/s.139 in favour of the holder of cheque-appellant
no.3 – Nature of presumptions u/s.139 & s.118(a), 1872 Act are
rebuttable – High Court did not keep in view that until the accused
 [2020] 2 S.C.R. 687
687
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SUPREME COURT REPORTS
[2020] 2 S.C.R.
discharges his burden to rebut the statutory presumption, the
presumption u/s.139 will continue to remain – Impugned order set
aside – FIR against the appellants is quashed – Criminal case filed
by appellant no.3 u/s.138 is restored – Same be disposed of in
accordance with law – Summary Suit be proceeded in accordance
with law, uninfluenced by views expressed by High Court in the
impugned order – Code of Civil Procedure, 1908 – Or.37– Penal
Code, 1860 – ss.406, 420, 465, 467, 468, 471 & 114 – Code of
Criminal Procedure, 1973 – s.482 – Evidence Act, 1872 – ss.45, 73
and 118(a).
Allowing the appeals, the Court
HELD: 1.1 The handwriting expert opined that signatures
in all the four receipts did not tally with the sample signatures
which were of respondent No. 2. It was only thereafter, complaint
was filed by him, based on which, FIR No.I-194/2016 was
registered on 28.12.2016 against the appellants for the offences
punishable under Sections 406, 420, 465, 467, 468, 471 and 114
IPC. As rightly contended by the counsel for the appellants, in
the Summary Suit No.105/2015, issue No. 5 has been framed by
the Court “whether the defendant proved that the plaintiff has
fabricated the forged signature illegally and created forged
receipts”. When the issue as to the genuineness of the receipts
is pending consideration in the civil suit, the FIR ought not to
have been allowed to continue as it would prejudice the interest
of the parties and the stand taken by them in the civil suit.  In
terms of Section 45 of the Indian Evidence Act, the opinion of
handwriting expert is a relevant piece of evidence; but it is not a
conclusive evidence. It is always open to the plaintiff-appellant
No.3 to adduce appropriate evidence to disprove the opinion of
the handwriting expert. That apart, Section 73 of the Indian
Evidence Act empowers the Court to compare the admitted and
disputed writings for the purpose of forming its own opinion.
Based on the sole opinion of the handwriting expert, the FIR
ought not to have been registered. Continuation of FIR No.
I-194/2016, would amount to abuse of the process of Court.
[Paras 18, 19][696-F-H; 697-A-D]
1.2 The High Court erred in quashing the criminal case in
C.C.No.367/2016 filed by appellant No.3 under Section 13

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