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TMI Blog2019 (9) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2004. He did not pay the amount. 3. During the trial of the case, the complainant was examined as PW1 and Exts.P1 to P6 documents were marked on his side. DW1 was examined and Exts.D1 to D7 documents were marked on the side of the accused. 4. The trial court found that there are suspicious circumstances regarding the execution of the cheque by the accused and issuing it by him to the complainant in discharge of a debt. Therefore, the trial court found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him. 5. Heard learned counsel for the appellant and also the first respondent and perused the records. 6. Ext.P1 is the cheque dated 20.05.2004 for Rs. 1,70,000/- alleged to have been executed by the accused and delivered by him to the complainant. The cheque is seen signed by the proprietor of "Nice Agencies". Ext.P2 memorandum dated 08.9.2004 issued from the bank shows that the cheque was returned unpaid for the reason that payment was stopped by drawer. Ext.P3 memorandum issued from the bank would show that intimation was given to the complainant from his bank regarding the dishonour of the cheque on 09.09.2004. Ext.P4 is the copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a debt or in discharge of a liability. It is immaterial that the cheque was filled up by any person other than the drawer, if the cheque is duly signed by the drawer. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars in the cheque. This in itself would not invalidate the cheque. The onus would still be on the accused to prove, by adducing evidence, that the cheque was not issued in discharge of a debt or liability. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract the presumption under Section 139 of the Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In the absence of any evidence with regard to the circumstances in which a blank signed cheque was delivered by the accused to the complainant, it may reasonably be presumed that, the cheque was filled in by the complainant being the payee, in the presence of the accused being the drawer, at his request and/or with his acquiescence. The subsequent filling up of an unfilled signed cheque does not amount to an alteratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at about 11.30 hours, the complainant and his partner and three other persons trespassed into his shop and opened the drawer of the table in the shop and that they took two cheque leaves and that they threatened him and got his signature in the cheque leaves. 17. It is true that the accused did not take steps to summon the originals of Exts.D4 and D5 complaints from the police station. However, PW1 has admitted on cross-examination that the accused had given those complaints to the police. Therefore, the complainant cannot dispute the fact that the accused had given Exts.D4 and D5 complaints to the police regarding the incident. 18. It is true that regarding the incident that allegedly took place on 20.01.2004, the accused had given Exts.D4 and D5 complaints to the police only on 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng direct evidence to prove that the cheque in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence. If the circumstances so relied upon are compelling, the burden would shift again on to the complainant. The accused may also rely upon presumptions of fact, as those mentioned in Section 114 of the Evidence Act, to rebut the presumption arising under Section 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial (See Kumar Exports v. Sharma Carpets : AIR 2009 SC 1518). 21. Of course, learned counsel for the appellant has contended that the evidence of DW1 is not reliable and Exts.D4 and D5 documents cannot be acted upon by the court and that the evidence adduced by the accused does not enable him to rebut the presumption under Section 139 of the Act. Even if this contention is accepted, it has to be found that the accused has been able to rebut the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally enforceable debt due to him. It is only during the cross-examination that the complainant would disclose that the accused had borrowed Rs. 1,70,000/- from him on 14.04.2004. Such a case is disclosed by the complainant for the first time only during the cross-examination. PW1 has given evidence that there was no reason for not disclosing the nature and details of the transaction between him and the accused in the complaint. 24. Thirdly, even in examination-in-chief, the complainant has not given any evidence that the accused signed Ext.P1 cheque in his presence and gave it to him. Such a case was put forward by him only during the cross-examination. Absence of any averment by PW1 in examination-in-chief (proof affidavit) regarding the execution of the cheque by the accused has got significance. The complainant was very well aware that the plea of the accused was that the cheque was got signed from him under threat and coercion. As noticed earlier, the complainant did not even make a bare assertion in examination-in-chief denying the truth of the aforesaid plea raised by the accused. 25. Fourthly, the evidence of the complainant reveals that an amount of Rs. 20,000/- was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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