In a cheque-bounce case, a bank’s return memo was first marked as an exhibit without the bank’s seal or signature, and later produced again, this time bearing both, and marked afresh. The accused cried foul. The Rajasthan High Court disagreed: merely marking a document as an exhibit does not prove it, and its authenticity remains open to challenge in cross-examination and to be decided at the end of the trial.
Jodhpur: The Rajasthan High Court has held that the mere marking of a document as an exhibit does not, by itself, prove its contents, its execution or its authenticity, and has upheld a trial court’s decision permitting a bank return memo to be re-produced with the bank’s seal and signature and marked afresh, in a cheque-dishonour case under the Negotiable Instruments Act, 1881 [Gulam Mohd. v. Gopal Traders and Another].
Justice Sunil Beniwal, dismissing a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), declined to interfere with the concurrent orders of the trial court and the Sessions Court permitting the memo to be marked.
The case
The complainant had filed a complaint under Section 138 of the Negotiable Instruments Act, alleging that the accused had issued a cheque towards repayment of a loan, which was dishonoured for insufficient funds. During the trial, the complainant first produced the bank return memo, which was marked as an exhibit, but which did not bear the seal or signature of the bank or any authorised officer. The complainant subsequently produced the return memo bearing the bank’s seal and the signature of an authorised person, and the trial court permitted it to be marked as a fresh exhibit.
The accused objected, contending that the same document had already been exhibited earlier, and that allowing the later memo, with the seal and signature, to be marked effectively permitted the complainant to cure a defect in the earlier document. The trial court rejected the objection, and the Sessions Court dismissed the accused’s revision; he then approached the High Court.
Marking is not proof
The Court held that tendering or marking a document as an exhibit does not dispense with the legal requirement of proof, nor does such marking, by itself, make the document admissible evidence. A document, when exhibited, is not automatically deemed to be admitted or proved; its contents must still be proved in accordance with law. The mere fact that the subsequent bank return memo was marked as an exhibit, the Court held, could not be treated as conclusive proof of the document, its execution or the truth of its contents, and its evidentiary effect remained subject to proof in the usual way.
Since the trial was still at the stage of the complainant’s evidence, the Court observed, the accused would have the fullest opportunity to cross-examine and to test the authenticity of the document. The objections he raised, that the memo had been produced afresh with a seal and signature it earlier lacked, went to the weight and authenticity of the document, matters to be assessed on evidence at the conclusion of the trial, and not grounds to refuse its marking at this stage.
The Court added that procedural laws are meant to advance the administration of justice, and that the marking of the document, even without a formal application under the provision corresponding to Section 311 CrPC, would not vitiate its marking or the trial. It relied on the Constitution Bench decision in Willie (William) Slaney v. State of Madhya Pradesh for the principle that procedural irregularities that cause no failure of justice do not vitiate a trial.
Why it matters
The order clarifies a distinction that often causes confusion in trial courts: the difference between the marking of a document as an exhibit and the proof of that document. Marking is a procedural step by which a document is placed on the record and given an exhibit number; it says nothing about whether the document is genuine or whether its contents are true. Proof, by contrast, requires the document to be established in accordance with the law of evidence, through the appropriate witnesses and, where its authenticity is disputed, by testing it in cross-examination. A party does not win merely because a document bears an exhibit number.
Applied to a Section 138 NI Act case, the point is significant. The dishonour of the cheque is ordinarily proved through the bank’s return memo, and a memo lacking the bank’s seal and signature may carry little evidentiary value; but the remedy for that deficiency is not to shut out a properly authenticated memo, it is to let it be marked and then tested. The accused’s protection lies not in preventing the document from being exhibited but in the opportunity to challenge its authenticity and weight at trial, which the Court expressly preserved.
The decision also reflects the settled approach that procedure serves substance. Courts are reluctant to allow trials to be derailed by technical objections to the marking of documents, particularly where the objecting party retains a full opportunity to contest the document on the merits. Nothing in the order decides whether the cheque was in fact dishonoured or whether the offence is made out; those questions remain to be determined by the trial court on the evidence, with the return memo’s evidentiary value to be weighed along with the rest.
Case Title: Gulam Mohd. v. Gopal Traders and Another [S.B. Criminal Misc. (Petition) No. 4345/2026]
Bench: Justice Sunil Beniwal, High Court of Judicature for Rajasthan at Jodhpur
Reserved: September 10, 2026 | Pronounced: September 18, 2026
Status: Petition dismissed. Marking of the bank return memo (with seal and signature) as a fresh exhibit upheld; marking held not to amount to proof, with authenticity to be tested at trial. Merits of the cheque-dishonour case not decided.
