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TMI Blog2021 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the work to the accused for conversion of the land and then, the accused has to explain why he has received the amount more than ₹ 7,50,000/- other than the exhibits he relied upon. There is no explanation on the part of the accused for having received more than ₹ 7,50,000/-, when this Court comes to a conclusion that the document - Ex.P4 is issued by the accused only since he has not sent the document to the handwriting expert and the very theory of he has given the blank cheque as security cannot be accepted that too unsigned cheques. The trial Judge has committed an error in coming to the conclusion that the accused has made out the case by rebutting the evidence of the complainant and preponderance of probabilities are made out. The trial Judge did not consider the material available on record in a proper perspective. The Trial Court ought to have drawn the presumption against the accused under Section 139 of the NI Act. When the accused though denied the signature when he has not sent the same to the handwriting expert and also not given any reply to the notice and instead of drawing the presumption in favour of the complainant, the trial judge believed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee Left dated 9.6.2007. The accused is deemed to have received the notice and has deliberately failed to comply with the demand. Without any other alternative remedy, the complainant has filed a complaint against the accused. 4. The Trial Judge after taking the cognizance has secured the accused and the accused did not plead guilty. The complainant in order to substantiate his contention, he examined himself as P.W.1 and marked the documents as Ex.P.1 to P.11. The incriminating evidence against the accused was recorded under Section 313 of Cr.P.C. The accused also denied the issuance of cheque and lead evidence by examining himself as D.W.1 and got marked the documents as Ex.D1 to Ex.D8. The Trial Judge after considering both oral and documentary evidence has acquitted the accused. Hence, the present appeal is filed before this Court. 5. The main grounds urged in the appeal is that the Trial Judge has committed an error in acquitting the accused and failed to take note of the mischievous act of the accused in issuing an unsigned cheque. The defense of the accused is that he did issue two cheques to the appellant-school as security deposit under the contracts between the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence. When such being the case, the Trial Court ought not to have come to the conclusion that no documents are produced. 9. The learned counsel also would submit that the accused had provided the generator system to the School and his consultancy is also in respect of the maintenance of the generator and the accused also categorically admitted the payment made to him in respect of the work he has done. The accused is known to the complainant and hence the oral work was entrusted to him and the very accused himself relied upon the documents - Exs.D2 to D8 and as per his claim also the amount is only ₹ 1,43,563/- is in respect of providing generator as well as the work done by him. But the subject matter of the cheque in question is involved is ₹ 7,32,000/- towards the balance to be paid by the accused and he gave the said cheque towards the part payment since he did not convert the land belonging to the complainant-school. There was no explanation on the part of the accused for having received the amount of ₹ 8,83,800/- in all. The Trial Judge has committed an error in coming to the conclusion that there are no documents entrusting the work to the accused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged by the complainant. 13. The learned counsel relying upon the judgment of this Court in the case of H.M. Satish v. B.N. Ashok reported in MANU/KA/7172/2007, she brought to the notice of this Court, paragraph No.7 of the Judgment and referring to the same would submit that in the case of denial of signature of drawer of a cheque, the best witness would be the concerned Bank Manager and not a handwriting expert and learned counsel referring to this Judgment would submit that though the accused contend that his signature was forged neither sent the said signature to the handwriting expert or examine the Bank Manager with regard to any difference in the signature. 14. The learned counsel relying upon the judgment of the Apex Court in the case of L.C. Goyal v. Suresh Joshi and Ors. reported in MANU/SC/0159/1999, she brought to the notice of this Court, paragraph No.8 of the Judgment and referring to the same would submit that the Apex Court in this Judgment regarding forgery of signature held that the handwriting expert be examined in order to find out the genuineness of the signature and the cheque bounced not on account of the fact that the signature of the accused was not ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant, is erroneous. Learned Judge had lost sight of Sections 118 and 139 of the NI Act. In a complaint under Section 138 of the NI Act, the Court has to presume that the cheque has been issued for a debt or liability. The presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused as held in the judgment of Hiten P. Dalal case. 17. The learned counsel relying upon the judgment of the Apex Court in the case of Hiten P. Dalal v. Bratindranath Banerjee reported in MANU/SC/0359/2001, she brought to the notice of this Court, paragraph No.22 of the Judgment and referring to the same, she would submit that both Sections 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. 18. The learned counsel relying upon the judgment of this Court in the case of Usha Suresh v. R.V. Shashidaran reported in MANU/KA/0639/2005, this Court held that, whenever an accused leads rebuttal evidence to discharge the presumption initially raised in favour of the complainant, the Court must see whether the defense raised by the accused wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute. The complainant has not furnished any material for having paid the service charges and the complainant has suppressed the said material and whatever the payment has been made in favour of the accused is in respect of the service rendered by him, the cheque is also not issued for any debt or loan and no material evidence before the Court that the cheque was issued towards legal debt. The accused has rebutted the case of the complainant as there is no legal debt. When such being the case, the same cannot be recoverable at the instance of the accused. The trial Judge has rightly acquitted the accused and the judgments relied upon by the learned counsel appearing for the complainant are not applicable to the case on hand. 24. It is elicited from the mouth of P.W.1 that the accused was managing the affairs of maintaining the generator in respect of the complainant's school and the said amount was paid towards the services rendered by the accused and also towards the generator charges. The accused has taken a specific stand that a blank cheque was given as security and not given in respect of any liability. The complainant would contend that the cheques are sent through po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icited that the accused has not given in writing regarding conversion and his consent agreeing to do the conversion work. But they have given in writing to the accused regarding conversion of the land and the details regarding the same and he can produce such documents. The accused has not given in writing specifically accepting the said offer and no document in writing for entrusting the work to the accused for conversion. He admits that the conversion of the land is not within the purview of BBMP but it is with BMRDA. He admits that out of 41 acres of land 21 acres of land has been converted into non-agricultural land and no assistance given by the accused for conversion of land. It is suggested that the school is in access of the BMRDA and concerned panchayath and the said suggestion was denied. It is elicited that the transaction with the accused started in the month of March 2006 and completed in the month of November 2006 and also admits that the amount was transferred to the account of the accused. No notice has been issued to the accused with regard to conversion of the land asking him to show any progress. There is no communication regarding the progress of the work within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served on him. Ex.P3 is the self-attested statement of the complainant and he is operating his business from 25.03.2006 in different place. He has produced the documents Exs.D1 to D8 and got marked the same. He was subjected to cross-examination. 30. In the cross-examination, it is elicited that the complainant gave him two contract works. One was in the month of December 2005 and another contract work was in the month of November 2006. There is no mentioning of issuing cheques as a security in the contract agreements. Exs.D4 and D7 and D8 are the contract agreements. He also issued Exs.D5 and D6 to the complainant. He issued two cheques to the complainant one was in the month of December 2005 and another was in the month of November 2006. The signature on Ex.P4 does not belong to him. He has not taken any legal action against the complainant for forging the signature on Ex.P4. He has given Exs.P11 and P4 to estate Manager Sri Girish Nivas. He was residing and working in the address mentioned in Ex.D1 from March 2006. For the last six months, he has been residing in Indira Nagar. It is elicited that Ex.D8 is directly connected to Ex.D3. There was a contract between himself and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 'addressee left'. 33. The learned counsel appearing for the complainant would submit that the document relied upon by the accused himself, particularly, Ex.D1 is dated 25.3.2006 and while entering into the Rental Agreement, the very same address was mentioned in the document and the said premises is in respect of residential premises. The complainant counsel also relied upon the document - Ex.D2 i.e., dated 15.12.2005 and so also Ex.D3 dated 27.1.2006; Ex.D4 is dated 19.12.2005-Purchase Order; Ex.D5 is the acknowledgement issued by the complainant dated 15.09.2006 and the address mentioned in the letter dated 14.9.2006, the very same address mentioned in other documents. Ex.D6 is the other document dated 10.1.2006; Ex.D7 is dated 10.11.2006-the work order issued by the complainant and Ex.D8 is dated 17.1.2006 i.e., annual maintenance order. 34. Though the accused would contend that he shifted his business in terms of Ex.D1 in the march 2006 itself, the very document Ex.D5 is dated 14.9.2006 subsequent to the alleged shifting of his business and the same also discloses the very same address and he also relied upon the acknowledgment having given the same on 15.9.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd he says the signature on Ex.P4 is not of him and also not taken any legal action against the complainant for forging of his signature on Ex.P1. It is also important to note that he claims that those two cheques are given as security and admits that there is no mentioning of issuing cheques as security in the contract agreements. It is also important to note that he has not given any letter to the Bank for stop payment, but he volunteers that he has not signed the cheque. Hence, he has not given any intimation to the bank. It is important to note that when he claims that his signature was forged why he has not given the complaint, there is no explanation in this regard. It is also pertinent to note that he claims that he has received the amount and he did the work to the extent of ₹ 8 to 9 Lakhs as admitted by him. Though he claims that he can produce the documents to show that he did the work to the extent of ₹ 8 to 9 Lakhs, no documents are produced. The accused does not dispute Ex.P3 and he admits the payment made to him in terms of Ex.P3. It is also important to note that he claims the complainant gave two contract works one was in the month of December 2005 and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused did not pay the amount within 15 days, the Court has to draw the presumption though the accused denies the signature on Ex.P4(a) and on perusal of Ex.P4, the handwriting as well as signature are all signed by him and written by him with the very same ink pen. He ought to have sent Ex.P4 to a handwriting expert when he disputes the signature and the same has not been done. 39. The Madhya Pradesh High Court in Sadhna Pandey's case (supra) and Ragini Gupta's case (supra), held that, the complainant ought to have invoked Section 45 of the Evidence Act to prove his defense that he has not signed the cheque. 40. These are the aspects which have not been considered by the Trial Court while considering the material available on record both oral and documentary evidence and in the cross-examination of PW.1 also nothing is elicited to prove preponderance of probabilities of the case of the accused. PW.1 only gives the admission with regard to the transaction is concerned and having acquaintance with the accused and also admits that the payment was made in respect of consultation charges of the accused and it is clear that the services of the accused was availed for c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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