138 NI Act | Accused Can Seek Expert Handwriting Analysis If Complainant Specifically Asserts Accused Wrote Cheque Entries In Their Presence: Kerala High Court

"Where the complainant comes forward with the definite contention that the accused wrote the entries in the impugned cheque in his handwriting and signed it in front of the complainant, the accused cannot be denied an opportunity to show that the aforesaid contention of the complainant is wrong," Kerala High Court, in a significant ruling, held that an accused in a cheque dishonour case is entitled to seek expert analysis of the handwriting on the cheque if the complainant specifically asserts that the entries were made by the accused in their presence.

A single-judge bench of Justice G. Girish observed that while statutory presumptions under the Negotiable Instruments Act, 1881 (NI Act) generally focus on the execution of the instrument, a specific factual claim by the complainant regarding the authorship of the handwriting makes such expert evidence relevant to testing the complainant's credibility.

The matter arose from two original petitions filed under Article 227 of the Constitution of India by PTB Chits Pvt Ltd and its directors, who were facing prosecution under Section 138 of the NI Act. In both cases, the complainants alleged that cheques for Rs. 4,00,000 each had been issued towards the discharge of liabilities but were dishonoured due to 'stop payment' instructions. At the stage of defence evidence, the petitioners moved applications to send the impugned cheques for expert analysis to prove that the entries were not in their handwriting, which were dismissed by the Judicial First Class Magistrate Court, Taliparamba.

The primary question before the Court was whether the handwriting in the body of a cheque remains irrelevant once the execution of the cheque is established, particularly in light of the statutory presumption under Section 139 of the NI Act. The Court was also called upon to determine if the accused should be granted an opportunity to disprove a specific factual assertion made by the complainant regarding the authorship of the writings on the cheque.

Court’s Observations On Statutory Presumptions

The Court noted that the trial court had dismissed the applications based on the principle that entries in a cheque lose relevancy once execution is established, given the statutory presumption under Section 139 of the NI Act. The Magistrate had reasoned that even if the handwriting was not that of the petitioners, it would make no difference if the cheques were otherwise executed and issued by them.

Relevancy Of Handwriting In Testing Credibility

The High Court observed that while the trial court's logic holds true in "normal cases," a different standard applies when a complainant makes a specific, categorical claim. In S.T.C. No. 1969/2019, the complainant testified during cross-examination that the entries were made in the handwriting of the accused. Similarly, in S.T.C. No. 4005/2023, the complainant’s proof affidavit unequivocally stated that the second accused had made the entries in the cheque in front of the complainant at their establishment.

Accused Entitled To Disprove Complainant's Specific Case

The bench emphasized that when a complainant stakes their case on the specific fact that the accused wrote the entries in their presence, the accused must be allowed to show this contention is false. If the accused succeeds in proving that the handwriting is not theirs, it directly strikes at the acceptability and credibility of the complainant's entire testimony.

Court Explains Risk To Prosecution’s Bonafides

Justice Girish noted that the credibility of the evidence tendered by the complainant regarding the execution of the cheques would be at stake if it is shown that the handwritings were not that of the accused as claimed. The Court held that denying the accused an opportunity to show this would result in the evidence being vitiated for a lack of bonafides.

"The question whether the handwritings in the impugned cheques are that of the accused, is having great relevancy... the credibility of the evidence tendered by the complainant about the execution of the cheques by the accused, would be at stake, if it is shown that the handwritings found in the impugned cheques were not that of the accused."

Final Directions And Responsibility Of The Accused

Setting aside the orders of the Magistrate, the High Court directed the trial court to take necessary steps to send the cheques for expert analysis. However, the Court clarified that the responsibility and cost of providing specimen handwritings from the contemporary period and the expenses for the expert analysis must be borne entirely by the accused.

Consequences Of Failure To Provide Specimens

The Court further cautioned that if the petitioners/accused fail to make available the necessary specimen handwritings within a reasonable period, the Trial Court is at liberty to wind up the proceedings. In such a scenario, the lower court shall proceed to dispose of the cases based on the existing evidence available on record.

The High Court allowed both original petitions, emphasizing that the right to a fair trial includes the right of the accused to rebut specific factual allegations that form the foundation of the complainant's case. By setting aside the orders dated August 7, 2025, and August 11, 2025, the Court ensured that the accused could utilize expert testimony to challenge the veracity of the complainants' assertions regarding the authorship of the cheques.

Date of Decision: 29 June 2026