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TMI Blog2019 (9) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... does not warrant any interference by this Court in appeal - Appeal dismissed. - CRL.A. No. 1296 OF 2008 - - - Dated:- 19-9-2019 - MR R. NARAYANA PISHARADI, J. For The APPELLANT : ADV. SRI.GEORGE SEBASTIAN For The RESPONDENTS : ADV. SRI.ABRAHAM MATHEW VETTOOR AND SRI.E.C.BINEESH -G.P JUDGMENT The appellant is the complainant. Challenge in the appeal is directed against the acquittal of the first respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 2. The case of the complainant, as stated in the complaint, is as follows: The accused issued a cheque dated 20.04.2004 for ₹ 2,00,000/- in favour of the complainant towards discharge of a legally enforceable debt. The complainant presented the cheque in the bank. The cheque was dishonoured for the reason that payment was stopped. The complainant received intimation regarding the dishonour of the cheque on 09.09.2004. He sent a lawyer notice to the accused on 13.09.2004 demanding payment of the amount of the cheque. The accused received the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d three other persons trespassed into his shop and forcibly took his cheque book and threatened and compelled him to sign two cheque leaves. Unable to resist them, he signed the cheque leaves. The complainant has misused one of the cheque leaves and filed the complaint. The partner of the complainant has filed another case against him by misusing the other cheque leaf. 8. When examined as PW1, the complainant gave evidence in examination-in-chief (proof affidavit) that the accused issued Ext.P1 cheque dated 20.04.2004 to him for discharging the legally enforceable debt due to him. 9. PW1 has stated on cross-examination that the accused signed Ext.P1 cheque in his presence and gave it to him. In reexamination, he stated that he was not aware whether the accused had already made the entries in the cheque and kept it with him. But, PW1 reiterated that the accused signed the cheque in his presence. 10. The trial court has found that the signature in Ext.P1 cheque alone belongs to the accused and that the other entries in the cheque are in a different handwriting and that the complainant has no definite case that the cheque was filled up i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused is that he had signed only a blank cheque leaf, that too, under threat and coercion. The burden is upon the accused to prove this plea. The accused relies upon the evidence of DW1 and Exts.D3 and D4 documents to prove his plea. 14. DW1 is said to be a person who was employed in the shop of the accused during the period from January, 2004 to February, 2005. He has given evidence that, one day, during the aforesaid period, the owner of 'Royal Associates' and four other persons came to the shop and they opened the drawer of the table in the shop and took two cheque leaves and forcibly made the accused to sign them. He has stated that the aforesaid incident took place during the second or third week of January, 2004. 15. The evidence of DW1 in examination-in-chief that the complainant and his partner, by force, got two blank cheque leaves signed from the accused, has not been effectively challenged in the cross-examination. Not even a suggestion was made to DW1 in the cross-examination that no such incident took place. Nothing was brought out in the cross-examination of DW1 to discredit his evidence regarding the said incident. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.08.2004. However, the delay in making complaint to the police regarding the incident that took place on 20.01.2004, is not sufficient to disbelieve the plea of the accused. In the complaints given by him to the police, it is stated that the complainant and his partner used to blackmail him and threaten him. Moreover, when the evidence of DW1 is accepted as believable, even in the absence of Exts.D3 and D4 complaints, the plea of the accused would stand proved. 20. There is yet another circumstance which indicates that the plea of the accused is very much probable. Before he gave evidence as PW1, the complainant was very much aware of the plea of the accused. The complainant had received Ext.D1 reply notice sent by the accused. However, there is not even a whisper made by PW1 in examination-in-chief about the plea raised by the accused. Even though the complainant was fully aware of the plea of the accused regarding the execution of the cheque, his evidence in examination-in-chief does not contain even a bare assertion denying the truth of such plea raised by the accused. 21. When a presumption is rebuttable, it only points out the party on whom l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s v. Sharma Carpets : AIR 2009 SC 1518 ). 22. Learned counsel for the appellant would contend that, in the nature of the defence set up by the accused, the best evidence to prove his plea that he had signed the cheque under threat and coercion, would have been his own testimony, but the accused has not chosen to adduce such evidence. 23. The aforesaid contention runs counter to the provisions contained in Section 315 (1) of the Code of Criminal Procedure, 1973. Article 20(3) of the Constitution of India states that no person accused of any offence shall be compelled to be a witness against himself. Section 315(1) of the Code provides that any person accused of an offence before a criminal court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. However, the proviso to Section 315(1) of the Code states that the accused shall not be called as a witness except on his own request in writing and that his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rceable debt. Of course, absence of averments in the complaint or the notice regarding the nature of the debt or liability of the accused, does not affect the maintainability of the complaint or the validity of the notice. But, absence of averments in the complaint as to the details of the transaction between the complainant and the accused, in which the accused incurred the debt or liability, or the nature of the debt or liability of the accused, affects the credibility of the evidence subsequently adduced by the complainant regarding any such transaction. It affects the credibility of the case set up by the complainant against the accused. In the instant case, the complaint does not disclose that there was a loan transaction between the complainant and the accused. The date on which the accused borrowed the amount from the complainant, the date on which he gave the cheque to the complainant and the date on which the complainant presented the cheque in the bank are also not mentioned in the complaint. Absence of such details in the complaint affects the credibility of the evidence given by the complainant (See Vijay v. Laxman : (2013) 3 SCC 86 and Divakaran v. State of Kerala : ..... 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