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TMI Blog2019 (12) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant had preferred a complaint against the petitioner under Section 138 of NI Act The complainant completed his evidence. At the stage of starting of the defence evidence, the petitioner/ accused has taken a plea that the cheque in question, though undisputedly signed by him, however, was not drawn by him; because he had not filled up the body of the cheque. To prove this fact, the petitioner/ accused moved an application before the trial Court for sending his sample handwriting to the expert for comparison of the same with the writing found in the body of the cheque. That application was declined by the trial Court vide the abovesaid order dated 29.01.2019. Aggrieved against the order of the trial court, the petitioner/ accused preferred the revision petition before the Court of Additional Sessions Judge, Faridkot. However, the same was also declined by the Additional Sessions Judge; vide order dated 02.07.2019. While dismissing the revision petition, the Revisional Court observed that the accused want to plead that it is not he, who filled up the body of the cheque; rather it is the complainant who filled up the cheque. However, the complainant has not even clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner could have, very wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. Explanation 1.- For the purpose of this section, the expressions-- (a) a cheque in the electronic form means a cheque drawn in electronic form by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system or with electronic signature, as the case may be;] (b) a truncated cheque means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the further physical movement of the cheque in writing. Explanation II.-- For the purpose of this section, the expression clearing house means the clearing house managed by the Reserve Bank of India or a clearing house recognised as such by the Reserve Bank of India.] [Explanation III.-- For the purposes of this section, the expressions asymmetric crypto system , comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only that, the Act goes to the extent of recognising the indorsement in blank and presuming the authority; with the holder in due course; to fill up the amounts therein. The definite provisions to this effect are contained in Section 13, Section 16 and Section 20 of the Negotiable Instruments Act. Still further, Section 89 recognises the negotiable instrument as a valid instrument despite the alteration thereon, if the alteration is not apparent on the face of it. This would also show that the Act is emphasising in favour of the validity of the instrument if it is signed by the drawer, maker or indorser. Moving a step further, Section 120 of the Act, creates an estoppel against the drawer of the cheque or maker of a promissory note or bill of exchange; by denying him the right to question the validity of the instrument as originally made or drawn. Therefore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not he who filled up the body of the cheque, whereas anybody else may have done it. However, as mentioned above, this is not any defence for the accused in a case under Section 138 of Negotiable Instruments Act. So far as the judgment of the Kerala High Court in C. Santhi s case (supra) is concerned, this Court is in respectful partial disagreement with the said judgment. This Court finds that as per the statutory provisions the word drawn is not defined by the Act. Even the definition of the cheque is such which may not even require any handwriting of the drawer of the cheque. It can be even any digital format requiring only digital signature . All the provisions of Negotiable Instruments Act only require signatures of the drawer on such instrument for making it a valid tender. Therefore, as observed above, once the signatures are not disputed; then the cheque has to be taken to have been drawn by the drawer himself, however, subject to the other defences which the drawer may be able to take; in accordance with law. This Court also finds that the trial Court has rightly recorded that it is not even the case of the complainant that the cheque was filled up by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, this Court is not supposed to go into legality and propriety of the order passed by the trial Court. Section 397(3) of Cr.P.C prohibits second revision by a party. Under Section 397(1), the Revisional Court is authorised to see legality and propriety of the order passed by the Court. Since second revision by the same party is prohibited under Section 397(3), therefore, any argument on legality or propriety of an order passed by the Court below, ordinarily, is not to be appreciated in proceedings under Section 482 Cr.P.C, unless it is shown, at the macro level, that such an order has resulted from considerations which were totally alien to the process of the Court or have produced incomprehensibly absurd result and, therefore, have resulted in defeating the ends of justice itself. What cannot be done directly, cannot be done indirectly as well. In the present case, except to argue for reappreciation of the material before the trial Court, there is not even a submission or an allegation regarding any aberration in the process adopted by the Courts for passing the impugned orders. Therefore, power under Section 482 Cr.P.C cannot be exercised by this Court to re-a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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