2019 (12) TMI 385 - HC - Indian Laws

Dishonor of Cheque - specimen handwriting on the cheque - application of the petitioner/ accused dismissed for taking his own specimen handwriting for comparison of the same with the writing on the body of the cheque involved the complaint - section 138 of nI Act - HELD THAT - In the present case the petitioner has not even disputed his signatures on the cheque. Therefore the only attempt which is being made by the petitioner is that he wants to prove the nonexistence of the consent of the petitioner qua drawing of the cheque by asserting the fact that body of the cheque was not filled up by the petitioner/ accused. However it is not even disputed by the petitioner that the cheque which is on the Court file is complete in all respects containing all the necessary particulars meant for a cheque. Therefore in considered opinion of this Court even if the Court would have acceded to the request of the petitioner and sent the cheque for comparison of the handwriting of the petitioner; and in an extreme case even if the report would have come to the effect that the body of the cheque is not filled up by the petitioner; still it would not have proved the fact that the cheque was not issued or drawn by the petitioner or with his consent. It is nowhere provided under any law that a cheque would be a valid instrument only if all parts of the same are filled up by the drawer or the holder of the account himself or in his own handwriting. The fact that the body of the cheque might have been in a handwriting different than the signatures of the petitioner is totally irrelevant; for the purpose of offence under Section 138 of NI Act. For proving offence under Section 138 of NI Act against an accused the complainant is not required by law to prove that body of cheque was filled up by the accused himself or even with his consent. Therefore any report qua writing in the body of the cheque would not have rebutted any presumption as claimed by the accused/ petitioner. There is no statutory or jurisprudential basis to hold that unless the body of the cheque is filled up by the drawer himself the cheque would not be taken as having been validly drawn by him. Once the signatures are not denied then it contains an in-built presumption that all the material particulars have been filled up either by the drawer or with his authorisation unless the drawer proves it otherwise by leading some other independent evidence - in the present case the fact that body of the cheque was filled up in handwriting other than that of the drawer of the cheque; is not any proof of the fact that the consent of the drawer; in drawing such a cheque; was missing. If this is permitted then the drawer of the cheque can frustrate the provisions of Negotiable Instruments Act in; virtually; every case. He can get the cheque prepared as per his choice from some other person and can subsequently start pleading that he had not filled up the body of the cheque or that he had not consented to the filling of the body of the cheque. The petitioner has already availed his remedy of revision against the order passed by the trial Court. The second revision by the same party is expressly barred under Section 397(3) Cr.P.C. - Since in the present case also the petitioner has tried to reck up the issue of legality or propriety of the orders passed by the Courts therefore the present petition is nothing but a second revision; in the garb of petition filed under Section 482 Cr.P.C. However a person cannot be permitted to do indirectly what he cannot do directly. This Court does not find even any illegality or perversity in the orders passed by the Courts below - petition dismissed as not maintainable.

Summary

Issues Involved:
1. Validity of the trial court's order dismissing the application for specimen handwriting comparison.
2. Validity of the Additional Sessions Judge's order dismissing the revision petition.
3. Legal interpretation of 'drawing' a cheque under Section 138 of the Negotiable Instruments Act (NI Act).
4. Applicability of Section 397(3) Cr.P.C. in the context of filing a second revision petition.

Detailed Analysis:

1. Validity of the Trial Court's Order:
The trial court dismissed the petitioner's application to send his sample handwriting for comparison with the writing on the cheque. The petitioner claimed that although he signed the cheque, he did not fill out its body. The court found this irrelevant because the complainant did not assert that the petitioner filled out the cheque. The court emphasized that the signatures on the cheque were undisputed, and under the law, it is not necessary for the body of the cheque to be filled by the drawer himself. The court concluded that the body of the cheque could be filled by anyone, making the petitioner's request for handwriting comparison irrelevant.

2. Validity of the Additional Sessions Judge's Order:
The Additional Sessions Judge dismissed the revision petition against the trial court's order. The revisional court noted that the accused's argument about not filling out the cheque was irrelevant since the complainant did not claim that the accused filled it out. The court reiterated that the law does not require the body of the cheque to be filled by the drawer. The court held that the signatures on the cheque were sufficient to establish its validity under Section 138 of the NI Act.

3. Legal Interpretation of 'Drawing' a Cheque:
The petitioner argued that 'drawing' a cheque means completing all parts of it by the drawer himself. The court rejected this argument, stating that the term 'drawing' is not defined in the NI Act. The court explained that a cheque is valid if it contains the drawer's signature, regardless of who filled out the body. The court cited Sections 5 and 6 of the NI Act, which emphasize the importance of the drawer's signature rather than who filled out the cheque. The court also referenced other provisions of the NI Act that support the validity of a cheque based on the drawer's signature alone.

4. Applicability of Section 397(3) Cr.P.C.:
The court noted that the petitioner had already availed the remedy of revision against the trial court's order, and a second revision by the same party is barred under Section 397(3) Cr.P.C. The court emphasized that the present petition, filed under Section 482 Cr.P.C., was essentially a second revision in disguise. The court cited a previous judgment to support the principle that what cannot be done directly cannot be done indirectly. The court concluded that the petition was not maintainable as it sought to reappreciate the material already considered by the courts below.

Conclusion:
The court dismissed the petition, finding no illegality or perversity in the orders passed by the trial court and the Additional Sessions Judge. The court upheld the principle that a cheque is valid under the NI Act if it contains the drawer's signature, irrespective of who filled out its body. The court also reinforced the bar on second revisions under Section 397(3) Cr.P.C., emphasizing that the present petition was an attempt to circumvent this bar.