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TMI Blog2019 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... otiable Instruments Act, on the allegation that in the month of June, 2013, the revisionist had obtained a loan of Rs. 10,00,000/- from him and assured that she would refund the said amount within a period of six months. It was further alleged that in lieu of the said amount, the revisionist had given a cheque, dated 28th January, 2014 drawn on Andhra Bank, Madhoganj, Gwalior bearing no.119954. The said cheque was deposited by the respondent in the bank account of AXIS Bank, Lashkar, Gwalior on 3rd February, 2014 but the same stood dishonoured by the Bank vide memorandum dated 4th February, 2014 because the bank account was blocked. It is further alleged in the complaint that thereafter, a statutory notice dated 13th September, 2014 was sent by the respondent to the revisionist for payment of cheque amount but the same was returned back with an endorsement that "the addressee has left the premises". Thereafter, the respondent filed a private complaint before the Trial Magistrate. It was the defence of the revisionist that she did not take any loan amount from the respondent but in fact, the respondent and one Pankaj had stolen the cheque of the revisionist from the shop of her hus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the signature of the revisionist, no specific stand was taken by her that the cheque does not contain the signature of the revisionist. For the first time, in her evidence the revisionist took a specific stand that the cheque in question does not bear her signature. Under these circumstances, the respondent immediately filed an application under Section 45 of Evidence Act for sending the cheque in question to the Handwriting Expert to rebut the stand of the revisionist. The said application was vehemently opposed by the revisionist and it was rejected by the Trial Magistrate. It is submitted that in fact, where the revisionist herself had disputed her signature on the cheque in question, then the burden was on her to prove that the cheque in question does not bear her signature and under these circumstances, when the respondent himself had moved an application under Section 45 of Evidence Act for sending the disputed cheque to the Handwriting Expert for verification of the signatures of the revisionist, then she should not have opposed the application. The fact that the revisionist was not willing to get her signatures examined from Handwriting Expert clearly shows that the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused. The revisionist has failed to rebut the presumption under Section 139 of the Negotiable Instruments Act. The respondent has specifically stated that as his income was not taxable, therefore, he has only submitted the simple Income Tax Return. The respondent was cross-examined by the revisionist with regard to his source of income and he has specifically stated that the respondent was in the business of sale and purchase of vehicles which he had started in the year 2005 and continued till year 2011 and it was completely closed in the year 2013-14. From the month of May, 2005, the respondent is working on the post of Clerk in the Office of State Bar Council of Madhya Pradesh, Gwalior. It is further submitted that since the revisionist had family relations with the respondent, therefore, no document was prepared acknowledging the receipt of amount of Rs. 10,00,000/- and thus, it cannot be said that the respondent had not given any loan to the revisionist. Heard the learned counsel for the parties. The respondent had issued a notice under Section 138 of Negotiable Instruments Act. Although the said notice was returned with an endorsement that "the addressee has shifted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (DW2) has stated in her examination-in-chief that the cheque was stolen from the shop of her husband. She had never claimed that the cheque was stolen from the drawer of the computer table of the revisionist. However, In the registered notice Ex.P7, she had claimed that the cheque was stolen from the drawer of the computer table of the revisionist. In the notice Ex.P7, she had specifically stated as under:- Thus, it is clear that in the registered notice Ex. P7, she had specifically stated that the cheque was stolen from the drawer of the computer table of the revisionist and she came to know on her own after the drawer of the computer table was checked by her. On the contrary, in her examination-in-chief, the revisionist (DW2) had stated that the cheque was stolen from the shop of her husband. In her evidence, the revisionist (DW2) had stated that she has no family relationship with the respondent and even the respondent is not known to her, whereas in the notice Ex.P7, she has specifically stated that the respondent is a family friend of her husband and he used to visit the house and, therefore, the family members of revisionist had deep faith on him. Thus, in the registered no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or misused by the complainant, then it can be safely inferred/ presumed that the cheque was issued in discharge of legally recoverable dept/liability. It is the case of the revisionist that the respondent had not given loan to the revisionist. The cheque was stolen from the shop of the husband of the revisionist and it does not bear her signature, whereas the evidence which has come on record, clearly establishes that the respondent had family relations with the revisionist and he was frequently visiting the house of the revisionist, therefore, it cannot be said that the respondent was not known to the revisionist. The revisionist, in her registered notice Ex.P7, had not disputed her signature on the cheque but she had merely stated that the other entries in the cheque were filled up either by the respondent or he got it filled from some other person. Merely because the other entries in the cheque were not filled by the accused, would not absolve her from her liability arising from the cheque. Section 20 of the Negotiable Instruments Act draws a presumption in favour of the holder of the cheque. The Supreme Court in the case of Bir Singh vs. Mukesh Kumar passed in Criminal Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 4 lac with him. It is further submitted by the counsel for the respondent that after the evidence of the respondent was recorded, he lost his father, therefore, his father could not be examined. Thus, it is clear that no specific suggestion was given to the respondent that the cheque in question does not bear the signature of the revisionist but a vague suggestion was given that the signature of the revisionist was forged on the cheque in question. For the first time, in her evidence, it was stated by the revisionist that the cheque in question does not bear her signature and accordingly, immediately thereafter, the respondent filed an application under Section 45 of Evidence Act for sending the cheque in dispute to the Handwriting Expert for examination of the signatures of the revisionist. The said application was decided by trial Curt by order dated 2nd January, 2018. However, the crux of the matter is that the respondent had taken the stand of sending the cheque in question to the Handwriting Expert for examination of the signatures of the revisionist but the revisionist did not file any application under Section 45 of Evidence Act for sending the disputed signatures to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the appellant realized that the complainant has come to know that he has misappropriated a sum of Rs. 25,491/-, he gave a cheque for a sum of Rs. 38,000/- which is Ext.C-4. The said cheque was drawn on UCO Bank and the same was deposited in the Central Bank of India in the account of Union, viz., Siemens Employees Union, New Delhi. But the said cheque was dishonored due to insufficient funds. The appellant denied his signature on Ext. C-4 and contended that his signature was forged by the complainant. It is in this context that it was urged before the Bar Council of India that some handwriting expert be examined in order to find out the genuineness of the signature on Ext. C-4. As stated above, the cheque bounced not on account of the fact that the signature on Ext. C-4 was not tallying with the specimen signature of the appellant kept with the Bank, but on account of insufficient funds. Had the signature on Ext. C-4 been different, the bank would have returned the same with the remark that the signature on Ext. C-4 was not tallying with the appellants specimen signature kept with the bank. The memos Ext. C-6 and Ext. C-8 issued by the bank clearly show that signature of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o purpose will be served in sending the documents to the handwriting expert and there are no grounds to interfere with the order of the Lower Court." The Supreme Court in the case of Kishan Rao Vs. Shankargouda, reported in (2018) 8 SCC 165 has held as under:- "18. Section 139 of the Act, 1881 provides for drawing the presumption in favour of holder. Section 139 is to the following effect: "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." 19. This Court in Kumar Exports vs. Sharma Carpets, 2009 (2) SCC 513, had considered the provisions of Negotiable Instruments Act as well Evidence Act. Referring to Section 139, this Court laid down following in paragraphs 14, 15, 18 and 19: (SCC pp. 519-20) "14. Section 139 of the Act provides that 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. 15. Presumptions are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding to show that the real fact is not as presumed, the purpose of the presumption is over." 20. This Court held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. Following was held in paragraph 20: ( Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513) SCC p. 520 "20....The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Shrimohan [(2010) 11 SCC 441; para 26] cheques on 07.08.2002 for Rs. 37,00,000/- and Rs. 14,00,000/- knowing fully well that he did not have sufficient funds in his account. The letter dated 09.11.2002 was an after-thought, and was written to evade liability. This defence also lacked credibility, as the appellants had never asked for return of the alleged cheques for seven years. 22.4 The defence of the respondent that the Pronote dated 07.08.2002 signed by him, was allegedly filled by one Mahesh-DW.2, an employee of N.R.R. Finances, was rejected as being false. DW.2 himself admitted in his crossexamination, that he did not file any document to prove that he was employed in N.R.R. Finances. On the contrary, the appellants - complainants produced PW.2 and PW.4, Directors of N.R.R. Finances Investment Pvt. Ltd., and PW.3, a Member of N.R.R. Chit funds, who deposed that DW.2 was never employed in N.R.R. Finances. 23. The appellants have proved their case by over-whelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt. The respondent having admitted that the cheques and Pronote were signed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of her signatures. On the contrary, in paragraph 10 of her cross-examination, she has specifically admitted that the signature on the cheque resembles with the specimen signatures in the Bank. Even otherwise, the Bank has not returned the cheque on the ground of difference in her signatures. The Supreme Court in the case of Bir Singh (supra) has held as under:- 18. The Appellate Court affirmed the aforesaid factual findings. The Trial Court and the Appellate Court arrived at the specific concurrent factual finding that the cheque had admittedly been signed by the respondent-accused. The Trial Court and the Appellate Court rejected the plea of the respondent-accused that the appellant-complainant had misused a blank signed cheque made over by the respondent-accused to the appellant complainant for deposit of Income Tax, in view of the admission of the respondent-accused that taxes were paid in cash for which the appellant-complainant used to take payment from the respondent in cash. 19. It is well settled that in exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flee-bite sentence as had been chosen by the trial court. But in a case where the amount covered by the cheque remained unpaid it should be the look out of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount atleast during the pendency of the case. " However, in the present case, the Trial Court has adopted a lenient view by imposing the punishment of admonition only. Since the punishment of admonition has not been challenged by the respondent, therefore, under the facts and circumstances of the case, this Court is of the considered opinion that the punishment of admonition along with compensation amount of Rs. 12,69 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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