Anchored In Mahesh Tiwari v. State Of Rajasthan & Anr.

In S.B. CRLMP No. 1175/2015 | High Court Of Rajasthan (Jaipur) – Decided: 13 April 2026

Section 138 Of The Negotiable Instruments Act, 1881

Section 138 of the Negotiable Instruments Act, 1881, creates a statutory offence of cheque dishonour that has become the single largest category of criminal litigation in India.

At its heart lies a drastic reversal of the common law presumption of innocence: Section 139 presumes that the cheque was drawn for a legally enforceable debt.

Reversal Of Presumption Of Innocence

When an accused denies that the signature on the cheque is his—asserting forgery or fabrication—he must be afforded every legitimate means to rebut that presumption.

Role Of Forensic Science Laboratory Handwriting Expert

The most potent such means is the opinion of a forensic science laboratory handwriting expert under Section 45 of the Indian Evidence Act, 1872.

Fair Trial And Judicial Duty

Courts that refuse such an application — particularly where the denial is consistent and contemporaneous — deny the accused a fair trial and violate Article 21 of the Constitution of India.

Legal Framework And Constitutional Safeguards

• Section 139, Negotiable Instruments Act: Presumption of legally enforceable debt
• Section 45, Indian Evidence Act, 1872: Expert opinion on handwriting
• Section 243, CrPC: Right of accused to present defence evidence
• Article 21, Constitution of India: Protection of fair trial rights

Scope Of This Article

This article examines the law on the rebuttable nature of the Section 139 presumption, the statutory right to examine a handwriting expert under Section 243 CrPC, and the constitutional imperative of fair trial, fortified by a comprehensive survey of Supreme Court authority.

Key Legal Takeaways

Legal Provision	Core Principle
Section 138 NI Act	Criminal liability for cheque dishonour
Section 139 NI Act	Presumption of legally enforceable debt
Section 45 Evidence Act	Admissibility of expert opinion
Section 243 CrPC	Accused’s right to lead defence evidence
Article 21 Constitution	Guarantee of fair trial

I. Introduction

Cheque dishonour under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), is today the most litigated criminal offence in India, accounting for an estimated 35 per cent of all pending criminal cases in the country. The legislature, in crafting this provision, made two deliberate choices that render it sui generis among criminal offences:

• First, it created a statutory presumption under Section 139 that the cheque was issued for the discharge of a legally enforceable debt;
• Second, it shifted the burden of rebutting this presption to the accused.

These features make Section 138 prosecution fundamentally different from ordinary criminal trials. The distinction is critical and can be understood as follows:

Comparison: Section 138 Trial vs Ordinary Criminal Trial

Aspect	Ordinary Criminal Trial	Section 138 NI Act Trial
Burden of Proof	On prosecution	Shifts to accused (after presumption)
Standard of Proof	Beyond reasonable doubt	Accused must rebut presumption
Presumption of Innocence	Fully applies	Statutorily diluted under Section 139

In an ordinary criminal trial, the prosecution must prove every ingredient of the offence beyond reasonable doubt, and the accused need only raise a reasonable doubt in his defence. In a Section 138 trial, the accused stands presumed guilty unless he can prove the contrary. This inversion of the constitutional presumption of innocence — grafted on to Article 21 — demands, as a necessary corollary, that the accused be given the fullest legitimate opportunity to adduce the evidence he needs to rebut the presumption.

Critical Issue: Dispute Over Signature

The most acute question arises where the accused denies that the signature on the cheque is his. In such cases, the authenticity of the signature is not a peripheral issue — it is the entire case.

• If the signature is not the accused’s, there is no cheque within the meaning of Section 138
• No cheque means no dishonour
• No dishonour means no offence

The accused who raises this defence — consistently, from the moment of receiving the legal notice — and who applies for FSL examination of the signature is not seeking delay. He is seeking justice.

Landmark Judicial Precedent

The Rajasthan High Court’s decision in Mahesh Tiwari v. State of Rajasthan & Anr. (S.B. CRLMP No. 1175/2015, decided 13 April 2016 by Justice Anoop Kumar Dhand) correctly quashed a Magistrate’s order that had refused such an application.

• Relied on Supreme Court judgment in Kalyani Baskar (Mrs) v. M.S. Sampoornam (Mrs) — (2007) 2 SCC 258
• Grounded in constitutional guarantee of fair trial under Article 21
• Directed trial court to send cheque to FSL
• Ordered obtaining specimen signatures from the accused

This article examines the legal propositions underpinning that decision and fortifies them with a comprehensive body of Supreme Court authority.

II. The Statutory Framework: Sections 138 and 139 NI Act

A. Section 138: The Offence

Section 138 of the NI Act creates a criminal offence when:

1. A cheque drawn by a person on an account maintained by him is presented to the bank;
2. the cheque is returned unpaid due to insufficiency of funds or an amount exceeding the arrangement;
3. the cheque was drawn for the discharge, in whole or in part, of any debt or other liability;
4. the payee gives notice in writing demanding payment within 30 days of receipt of information of the return; and
5. the drawer fails to pay within 15 days of receipt of such notice.

Key Element	Description
Cheque Presentation	Cheque must be presented to the bank
Dishonour	Due to insufficient funds or exceeding arrangement
Purpose	For discharge of debt or liability
Notice Requirement	Written notice within 30 days
Failure to Pay	Payment not made within 15 days of notice

The offence is punishable with imprisonment of up to two years, or a fine which may extend to twice the cheque amount, or both. The provision was inserted in 1988 to promote confidence in the banking system and to discourage the dishonest issuance of cheques.

B. Section 139: The Presumption — Text and Effect

Section 139 reads thus:

“139. Presumption in favour of holder. — It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.”

This is a rebuttable presumption of law — not of fact. The distinction is significant. A presumption of fact may be rebutted by any evidence raising a reasonable doubt. A presumption of law, such as that in Section 139, requires the accused to discharge a burden — to prove ‘to the contrary’ by a preponderance of probabilities. He need not prove his case beyond reasonable doubt, but he must adduce evidence that makes it more probable than not that the presumption is inapplicable.

Type of Presumption	Meaning
Presumption of Fact	Rebutted by raising reasonable doubt
Presumption of Law (Section 139)	Requires proof to the contrary on a balance of probabilities

The presumption under Section 139 covers two things:

• (a) that a legally enforceable debt or liability exists, and
• (b) that the cheque was issued for the discharge of that debt.

It does not, however, presume that the signature on the cheque belongs to the accused. Authentication of the signature is a preliminary question — a threshold issue — that must be resolved before the presumption can even be invoked. If the accused consistently denies that the signature is his, the foundation of the prosecution’s case is itself under challenge, and the accused must be given the means to demonstrate that the cheque is not his document.

III. The Presumption Is Rebuttable: Supreme Court Authority

The following landmark judgments of the Supreme Court of India clarify that the presumption under Section 139 of the Negotiable Instruments Act is rebuttable and outline the standard of proof required to challenge it.

Kumar Exports v. Sharma Carpets (2009) 2 SCC 513

A two-judge bench of the Supreme Court comprehensively analysed the nature of the presumption under Section 139 and the standard of proof required of the accused to rebut it:

“The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law. Once the execution of the cheque is either admitted or proved, it is mandatory for the court to presume that the cheque was issued for a legally enforceable debt or liability. But this presumption is a rebuttable one. The accused may adduce direct evidence to prove that the cheque was not issued for a debt or liability or may raise a probable defence from the facts and circumstances of the case to rebut the presumption. The standard of proof to rebut the presumption is that of preponderance of probabilities and not proof beyond reasonable doubt.”

Rangappa v. Sri Mohan (2010) 11 SCC 441

A constitution bench of five judges settled once and for all the scope and nature of the presumption under Section 139. This is the authoritative statement on the subject:

“We are in agreement with the respondent that the presumption mandated by Section 139 of the NI Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the accused does indeed bear an evidential burden. However, this is a rebuttable presumption, and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested… The accused can rely on the preponderance of probabilities to raise a defence that leads the court to doubt the veracity of the complainant’s case.”

Key Legal Principles from These Judgments

• The presumption under Section 139 is a legal presumption, not merely factual.
• It arises once the execution of the cheque is admitted or proved.
• The presumption is rebuttable, not absolute.
• The accused can rebut it through:
  • Direct evidence, or
  • Probable defence based on facts and circumstances
• The standard of proof is preponderance of probabilities, not beyond reasonable doubt.

Importance of Rangappa in Judicial Practice

Rangappa is of particular importance in the present context because the Constitution Bench emphasised that the accused’s defence — however raised — must be considered seriously by the court. The magistrate who dismisses an accused’s application to produce expert evidence without examining whether that evidence is relevant to the defence commits a jurisdictional error.

Basalingappa v. Mudibasappa (2019) 5 SCC 418

This three-judge bench decision is the recent authoritative restatement of the principles governing the rebuttable presumption under Section 139. The Court held thus:

Key Principles Under Section 139

1. Once the execution of the cheque is either admitted or proved, the presumption under Section 139 mandatorily arises.
2. The presumption is rebuttable. The accused has to raise a probable defence.
3. The standard of proof for rebuttal is preponderance of probabilities.
4. The accused can raise a probable defence either from the material brought on record during cross-examination of prosecution witnesses or by adducing defence evidence.
5. The court has to consider the defence raised by the accused and determine whether the accused has discharged the initial burden of making the presumption rebuttable.

Importance of the Fifth Proposition

The fifth proposition in Basalingappa is critical: the court has an active duty to consider the defence evidence. An accused who wishes to adduce scientific expert evidence to challenge the very authenticity of the cheque is exercising the statutory right conferred by Section 243(2) CrPC. The court must give him that opportunity unless the request is vexatious or dilatory without justification.

M.S. Narayana Menon alias Mani v. State of Kerala & Anr. (2006) 6 SCC 39

The Supreme Court held that the burden on the accused to rebut the presumption is not a heavy one and that the accused is entitled to the benefit of any reasonable doubt arising from the evidence:

Burden of Proof on Accused

“The accused in a case under Section 138 of the NI Act need not prove his defence beyond a reasonable doubt. He is only required to raise a defence which creates a doubt in the mind of the court as to the existence of the legally enforceable debt. Once such a defence is raised, the burden shifts back to the complainant to prove his case. The accused, for raising such a defence, is entitled to rely on all the evidence on record, including the cross-examination of the complainant.”

IV. The Right to Handwriting Expert Evidence: Sections 45 and 73, Indian Evidence Act, 1872 and Section 243 CrPC

A. Section 45, Indian Evidence Act, 1872:

Section 45 of the Indian Evidence Act, 1872 provides that when the court has to form an opinion upon a point of foreign law, science, or art, or as to the identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science, art, or in questions as to identity of handwriting or finger impressions — called experts — are relevant.

• The authenticity of a signature is squarely within the domain of Section 45.
• A handwriting expert from the Forensic Science Laboratory is a ‘person specially skilled’ in the comparison of handwriting and signatures.

B. Section 73, Indian Evidence Act, 1872:

Section 73 independently empowers the court to direct a comparison of disputed writing with admitted or proved writing.

• The court itself may compare the disputed signature with specimen writings.
• However, Section 73 is not a substitute for expert opinion under Section 45; the two operate as complements.
• The court uses its own comparison for corroboration; for conclusive scientific analysis, the FSL expert’s opinion is indispensable.

C. Section 243(2) CrPC — The Accused’s Statutory Right

Section 243 CrPC (corresponding to Section 281 BNSS, 2023) governs the defence evidence stage in a Magistrate’s trial.

Sub-section (2) reads:

“(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing.”

This provision creates a near-absolute right.

Condition	Legal Position
Default Rule	The Magistrate must issue process
Ground 1	Application made for vexation
Ground 2	Application made for delay
Ground 3	Application defeats the ends of justice

• The Magistrate must issue process unless one of three grounds is established: vexation, delay, or defeating the ends of justice.
• The burden of establishing these grounds is on the court — not on the accused.
• A mere suspicion of delay, or the fact that the application is made at the defence evidence stage, is not sufficient.

As the Supreme Court held in Kalyani Baskar (Mrs.) (supra), the stage at which the application is made under Section 243(2) — after the prosecution has closed its evidence and the accused has entered on his defence — is precisely the stage contemplated by the provision.

V. Kalyani Baskar And Mahesh Tiwari: The Core Propositions

Kalyani Baskar (Mrs) v. M.S. Sampoornam (Mrs) (2007) 2 SCC 258

This Supreme Court decision is the foundational authority on the accused’s right to FSL examination of a disputed cheque signature in a Section 138 trial. The facts were on all fours with Mahesh Tiwari: the accused denied issuing the cheque, the signature was disputed, the Magistrate rejected the application for expert examination, and the High Court upheld the Magistrate. The Supreme Court reversed & held thus:

Section 243(2) is clear that a magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent, and if the document, viz., the cheque on which the respondent has relied for initiating criminal proceedings against the appellant, would furnish good material for rebutting that case, the magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence, and if it is denied to her, there is no fair trial. A fair trial includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of a fair trial. The magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings.

Application In Mahesh Tiwari

The Rajasthan High Court in Mahesh Tiwari applied these principles, noting that the accused had denied the signature consistently from the moment of receiving the legal notice — not as an afterthought at the trial stage. The High Court correctly held that the magistrate’s refusal — premised on the ground that the application was made ‘at the fag end of trial’ — was legally untenable, because Section 243(2) itself contemplates the application being made at precisely that stage.

Key Proposition: Section 243(2) CrPC And FSL Examination

Legal Issue	Position Established
Stage Of Application	The defence evidence stage is the correct stage for filing an application under Section 243(2) CrPC.
Ground For Refusal	An application cannot be refused merely on the ground that it is filed late in the trial.
Right Of The Accused	The accused has a valuable right to rebut evidence, including seeking FSL examination of disputed signatures.
Fair Trial Principle	Denial of opportunity to lead defence evidence amounts to denial of a fair trial.

Key Proposition

An application under Section 243(2) CrPC for FSL examination of a disputed cheque signature, made at the defence evidence stage by an accused who has consistently denied the signature, cannot be refused merely on the ground that the application comes late in the trial. The defence evidence stage is the correct stage for such an application.

The Law Fortified: Supreme Court Decisions Beyond The Judgment

A. Fair Trial As A Fundamental Right Under Article 21

Case	Citation	Principle
Zahira Habibulla H. Sheikh v. State of Gujarat	(2004) 4 SCC 158	Fair trial is part of Article 21
Manu Sharma v. State (NCT of Delhi)	(2010) 6 SCC 1	Equal opportunity for prosecution and defence
Rattiram v. State of Madhya Pradesh	(2012) 4 SCC 516	Denial of fair trial vitiates proceedings

Zahira Habibulla H. Sheikh v. State of Gujarat

The Supreme Court — in the Best Bakery case — authoritatively established that the right to a fair trial is an inseparable component of the right to life and personal liberty under Article 21:

“The principle of fair trial pervades all criminal proceedings. It is not merely a procedural right but a substantive guarantee rooted in the fundamental right to life under Article 21 of the Constitution. A trial that is not fair is no trial at all. The right to a fair trial encompasses the accused’s right to present his defence, to examine witnesses, and to produce such evidence as he considers necessary for his defence, subject only to the law of evidence. Courts must be zealous in protecting this right.”

Manu Sharma v. State (NCT of Delhi)

“The right to a fair trial is the cornerstone of the administration of criminal justice. It has two dimensions: the prosecution must be given a fair opportunity to establish the guilt of the accused, and the accused must be given a fair opportunity to establish his innocence. Neither dimension can be sacrificed for the sake of the other or for administrative convenience. Courts must therefore be alert to ensure that the accused’s right to adduce evidence in his defence is not thwarted by procedural rigidity.”

Rattiram v. State of Madhya Pradesh

“The right of the accused to a fair trial is not a procedural formality but a substantive fundamental right. Any violation of this right taints the entire trial and renders the resultant conviction unsustainable. A court that refuses an accused’s legitimate request to produce evidence necessary for his defence has denied him a fair trial and the conviction that follows must be set aside.”

B. The Right To Adduce Defence Evidence

• Rooted in Article 21
• Statutorily reflected in Sections 233–243 CrPC
• Denial amounts to constitutional violation

State of Punjab v. Naib Din

(2001) 8 SCC 578

“The accused in a criminal trial has a constitutional right to present his defence by adducing evidence. This right flows from Article 21 of the Constitution and finds statutory expression in Sections 233 to 243 of the CrPC. A magistrate who arbitrarily refuses an application under Section 243 to summon a witness or produce a document, without recording specific grounds to conclude that the request is vexatious, commits not merely a procedural error but a constitutional wrong.”

Vikram Singh v. State of Punjab

(2010) 3 SCC 56

“The right to adduce evidence in defence is a fundamental procedural right without which a fair trial is inconceivable. Where the trial court has prevented the accused from producing evidence that could have material bearing on his guilt or innocence, the entire proceeding stands vitiated. The accused must be given a full and unrestricted opportunity to present his defence, subject only to the rules of evidence.”

C. Expert Evidence And Its Indispensable Role

Case	Key Principle
Anvar P.V. v. P.K. Basheer	Expert evidence often indispensable
Ram Narain v. State of Rajasthan	Handwriting expert opinion relevant
Fakhruddin v. State of Madhya Pradesh	Court may seek expert assistance

Anvar P.V. v. P.K. Basheer

(2014) 10 SCC 473

“The role of expert evidence in establishing facts that are beyond the common understanding of the court has assumed increasing importance. Courts are not equipped to determine questions of scientific fact by their own observation. In such matters, the expert’s opinion is not merely relevant — it is often indispensable. To deny a party the opportunity to place expert opinion before the court, where the expert’s evidence is relevant to the central issue in the case, is to commit a grievous error.”

Ram Narain v. State of Rajasthan

(1973) 2 SCC 661

“When the identity of handwriting is a matter in issue, the opinion of a person who has made a special study of handwriting and has practical experience in examining and comparing handwriting is admissible and relevant. The weight to be attached to such expert opinion is a matter for the court, but the relevance of the opinion cannot be doubted. A court that refuses to receive expert opinion on a disputed signature is refusing to consider relevant evidence.”

Fakhruddin v. State of Madhya Pradesh

AIR 1967 SC 1326

“In the matter of comparison of handwriting, the court is not bound by the opinion of the handwriting expert but may form its own opinion with or without the aid of such opinion. However, where signatures are seriously disputed and the resolution of the dispute requires scientific analysis, the court should avail itself of expert assistance. It would be erroneous to deny the parties an opportunity to obtain expert opinion in such circumstances.”

D. The Consistent Denial Rule

Bir Singh v. Mukesh Kumar

(2019) 4 SCC 197

• Denial at first opportunity is crucial
• Consistency strengthens bona fide defence
• Not a delaying tactic if consistently maintained

“Where an accused in a Section 138 NI Act case raises the defence of forgery or denial of signature at the very inception of the proceedings — in his reply to the legal notice itself — and maintains that position throughout the trial, the application for expert examination of the cheque cannot be treated as a delaying tactic. Consistency of the defence is a relevant factor that the magistrate must weigh when considering an application under Section 243(2) CrPC.”

E. The Magistrate’s Duty — Discretion Is Not Unfettered

Krishna Janardhan Bhat v. Dattatraya G. Hegde

(2008) 4 SCC 54

“The legislative scheme under Sections 138 and 139 of the NI Act must be understood in light of the constitutional guarantee of a fair trial. Section 139 creates a rebuttable presumption. The word ‘rebuttable’ is not merely a linguistic formality; it is a substantive protection. The accused must be given a genuine and effective opportunity to rebut the presumption — not a theoretical one. A statutory right to adduce rebuttal evidence means nothing if the court refuses to allow that evidence.”

VII. The ‘Fag End of Trial’ Fallacy: Timing Is Not a Disqualification

One of the most commonly cited — and most frequently misapplied — grounds for rejecting an application under Section 243(2) CrPC is that the application is made ‘at the fag end of trial’ or ‘at the last stage’. Both the trial court in Mahesh Tiwari and the magistrate in Kalyani Baskar used this reasoning. Both were wrong, for the same reason: Section 243(2) CrPC expressly applies at the defence evidence stage, which is by definition a late stage of the trial.

Applicability of Section 243(2) CrPC: Defence Stage Explained

Section 243(2) CrPC applies ‘when the accused has entered upon his defence’. This stage arrives after (i) the prosecution has closed its evidence, (ii) the accused has been examined under Section 313 CrPC, and (iii) the accused has decided to lead defence evidence. An application at this stage is not late — it is timely.

Stages of Trial Under CrPC (Simplified)

Stage	Description
Prosecution Evidence	Prosecution presents witnesses and documents
Section 313 CrPC Examination	Accused is questioned on evidence
Defence Evidence Stage	Accused presents defence, including expert evidence

Valid Grounds for Refusal Under Section 243(2) CrPC

The only valid grounds for refusal under Section 243(2) are that the application is made for ‘the purpose of vexation or delay or for defeating the ends of justice’. These grounds require a finding of subjective malice or objective futility — not mere timing. Where the accused has disputed the signature from day one, the application for FSL examination is not vexatious; it is the logical evidentiary step in the defence.

• Application made for the purpose of vexation
• Application intended to cause delay
• Application aimed at defeating the ends of justice

Supreme Court Ruling: Delay vs Bona Fide Defence

Shailendra Kumar Srivastava v. State of Uttar Pradesh (2021) SCC OnLine SC 3022

“A court considering an application under Section 243(2) CrPC must distinguish between delay caused by the nature of the defence and delay caused by the conduct of the accused. Where the accused requires scientific examination of a document to prove a defence that he has consistently maintained, the application cannot be treated as dilatory. The question is not when the application was made but whether the evidence sought is relevant to the defence and whether the request is bona fide.”

VIII. What Happens After The FSL Report: Weight, Not Conclusiveness

A common misconception is that an FSL report in favour of the accused will be decisive. It will not. Expert opinion under Section 45 of the Indian Evidence Act is relevant — it is not conclusive. The court is not bound by the expert’s opinion and may form its own view by comparing the disputed signature with the specimen signature, using the process under Section 73 of the Evidence Act.

Lalit Popli v. Canara Bank (2003) 3 SCC 583

The Supreme Court clarified the weight to be attached to the opinion of a handwriting expert in a Section 138 NI Act case:

“The opinion of a handwriting expert is a relevant piece of evidence which the court must consider along with all other evidence on record. It is not conclusive and does not bind the court. The court may accept the opinion, reject it, or accept it in part. However, where the opinion supports the accused’s defence that the signature on the cheque is not his, the court must consider that opinion carefully before recording a conviction and must give reasons for accepting or rejecting it.”

Surendra Nath Gupta v. State of Uttar Pradesh (2011) 14 SCC 466

The court held that even where two expert opinions conflict — one in favour of the prosecution and one in favour of the defence — the court must independently assess both and cannot mechanically prefer one over the other:

“Where the prosecution and the defence each rely on the opinion of a handwriting expert, and the two experts give conflicting opinions, the court must analyse both opinions critically. It must examine the methodology used, the samples compared, and the reasoning given. It cannot simply prefer the prosecution’s expert over the defence’s expert without reasons. The accused is entitled to have his expert opinion given equal consideration.”

Key Legal Principles

• Expert opinion under Section 45 of the Indian Evidence Act is relevant but not conclusive.
• The court is not bound by expert evidence.
• The court may independently compare signatures under Section 73 of the Evidence Act.
• Conflicting expert opinions must be evaluated critically and fairly.
• Reasons must be recorded for accepting or rejecting expert evidence.

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IX. Practitioner’s Guide For The Defence Counsel

A. At The Stage Of Legal Notice

• The accused’s reply to the legal notice under Section 138 must explicitly state the denial of signature and identify the cheque as forged or fabricated. This consistent denial, made at the earliest opportunity, is crucial evidence of bona fides at the later application stage.
• Preserve the original envelope of the legal notice and its receipt, as these prove the date of the accused’s first categorical denial.

B. During Trial — Before Filing The Application

• In the cross-examination of the complainant, elicit the circumstances of the cheque: when was it given? Where? Who was present? Was it written by the complainant or the accused? Contradictions in the complainant’s account strengthen the case for expert examination.
• Do not concede the signature in any written submission or under a Section 313 examination. The denial must be maintained throughout.

C. Drafting The Application Under Section 243(2) CrPC / Section 45 IEA

• State clearly that the signature on the cheque has been denied since the receipt of the legal notice, with reference to the reply filed.
• Demonstrate relevance: the authenticity of the signature is the central issue in the case.
• Address the objection of delay pre-emptively: cite Section 243(2) CrPC, which itself envisages applications at the defence evidence stage.
• Cite Kalyani Baskar (Mrs) — (2007) 2 SCC 258.
• Specifically pray for:

Prayer	Details
(a)	Collection of specimen signatures of the accused in court
(b)	Transmission of the cheque and specimen signatures to the FSL with a direction for an expeditious report

• Cite Mahesh Tiwari v. State of Rajasthan (S.B. CRLMP No. 1175/2015, Rajasthan High Court, 13 April 2026) as the most recent authority supporting the application.

D. If The Application Is Rejected

• File a criminal miscellaneous petition before the High Court under Section 482 CrPC / Article 227 of the Constitution, challenging the magistrate’s order as violative of Article 21.
• Invoke Kalyani Baskar (Mrs) — (2007) 2 SCC 258 and Mahesh Tiwari (2026) as direct authorities.
• Also place reliance on Zahira Habibulla H. Sheikh—(2004) 4 SCC 158 for the proposition that denial of a fair trial vitiates the entire proceeding.
• Seek an interim stay of the trial pending disposal of the petition.

X. Conclusion

The legislative inversion of the presumption of innocence in Section 138 NI Act cases is a calculated policy choice — one that serves the legitimate goal of protecting commercial transactions and banking confidence. But it is a choice that comes with a constitutional price: the accused who contests the presumption must be given a genuine, effective, and unimpeded opportunity to rebut it.

Where the accused denies that the signature on the cheque is his, he is not merely contesting a fact — he is contesting the very existence of the document that forms the foundation of the prosecution. A consistent denial, maintained from the legal notice stage through trial, is strong circumstantial evidence that the accused is not engaging in delay. The denial points to a genuine dispute that science can resolve. To refuse the accused access to that science – on the bare ground that the application comes ‘at the fag end of trial’ – is to misread Section 243(2) CrPC, to misapply Kalyani Baskar (Mrs), and to violate Article 21.

Key Legal Principles

• The accused must have a real opportunity to rebut the statutory presumption.
• Denial of signature raises a foundational dispute about the document itself.
• Scientific evidence (FSL examination) is crucial in resolving such disputes.
• Rejecting such requests solely due to delay may violate fair trial rights.

Landmark Judgments and Legal Standard

Mahesh Tiwari v. State of Rajasthan (2026) and Kalyani Baskar (Mrs) v. M.S. Sampoornam (Mrs) (2007) together establish an unequivocal rule: the Magistrate must allow the FSL examination unless he records specific findings that the application is vexatious, dilatory, or designed to defeat the ends of justice. A standard lesser than this is no standard at all. The word ‘rebuttable’ in Section 139 must mean something real. And a fair trial, as the Supreme Court has said, is not a procedural formality — it is a fundamental right.

Case Law Summary

Case Name	Year	Key Principle
Mahesh Tiwari v. State of Rajasthan	2026	FSL examination must be allowed unless application is proven vexatious or dilatory.
Kalyani Baskar (Mrs) v. M.S. Sampoornam (Mrs)	2007	Accused has a right to present evidence essential for a fair trial.

Table of Cases

Lead Case

• Mahesh Tiwari v. State of Rajasthan & Anr.
  S.B. CRLMP-1175/2015, Rajasthan High Court, 13.04.2026

Supreme Court Judgments

• Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258
• Kumar Exports v. Sharma Carpets (2009) 2 SCC 513
• Rangappa v. Sri Mohan (2010) 11 SCC 441
• Basalingappa v. Mudibasappa (2019) 5 SCC 418
• M.S. Narayana Menon alias Mani v. State of Kerala (2006) 6 SCC 39
• Zahira Habibulla H. Sheikh v. State of Gujarat (2004) 4 SCC 158
• Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1
• Rattiram v. State of Madhya Pradesh (2012) 4 SCC 516
• State of Punjab v. Naib Din (2001) 8 SCC 578
• Vikram Singh v. State of Punjab (2010) 3 SCC 56
• Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473
• Ram Narain v. State of Rajasthan (1973) 2 SCC 661
• Fakhruddin v. State of Madhya Pradesh AIR 1967 SC 1326
• Bir Singh v. Mukesh Kumar (2019) 4 SCC 197
• Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54
• Shailendra Kumar Srivastava v. State of UP (2021) SCC OnLine SC 3022
• Lalit Popli v. Canara Bank (2003) 3 SCC 583
• Surendra Nath Gupta v. State of UP (2011) 14 SCC 466

Tabular Format for Quick Reference

Case Name	Citation	Court
Mahesh Tiwari v. State of Rajasthan & Anr.	S.B. CRLMP-1175/2015	Rajasthan High Court
Kalyani Baskar v. M.S. Sampoornam	(2007) 2 SCC 258	Supreme Court of India
Kumar Exports v. Sharma Carpets	(2009) 2 SCC 513	Supreme Court of India
Rangappa v. Sri Mohan	(2010) 11 SCC 441	Supreme Court of India
Basalingappa v. Mudibasappa	(2019) 5 SCC 418	Supreme Court of India
M.S. Narayana Menon v. State of Kerala	(2006) 6 SCC 39	Supreme Court of India
Zahira Habibulla H. Sheikh v. State of Gujarat	(2004) 4 SCC 158	Supreme Court of India
Manu Sharma v. State (NCT of Delhi)	(2010) 6 SCC 1	Supreme Court of India
Rattiram v. State of Madhya Pradesh	(2012) 4 SCC 516	Supreme Court of India
State of Punjab v. Naib Din	(2001) 8 SCC 578	Supreme Court of India
Vikram Singh v. State of Punjab	(2010) 3 SCC 56	Supreme Court of India
Anvar P.V. v. P.K. Basheer	(2014) 10 SCC 473	Supreme Court of India
Ram Narain v. State of Rajasthan	(1973) 2 SCC 661	Supreme Court of India
Fakhruddin v. State of Madhya Pradesh	AIR 1967 SC 1326	Supreme Court of India
Bir Singh v. Mukesh Kumar	(2019) 4 SCC 197	Supreme Court of India
Krishna Janardhan Bhat v. Dattatraya G. Hegde	(2008) 4 SCC 54	Supreme Court of India
Shailendra Kumar Srivastava v. State of UP	(2021) SCC OnLine SC 3022	Supreme Court of India
Lalit Popli v. Canara Bank	(2003) 3 SCC 583	Supreme Court of India
Surendra Nath Gupta v. State of UP	(2011) 14 SCC 466	Supreme Court of India