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TMI Blog2021 (2) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... say if that is forged one or genuine one. If at all there was any doubt about his signature, the best option was to seek reference of Ex.P1 to the opinion of the hand writing expert which he did not resort to for the reasons best known to him - Once it was held that the cheque pertains to the account of the petitioner and that was issued by him, the presumptions under Section 118 of NI Act to the effect that cheque was issued for consideration and the presumption under Section 139 of the NI Act that the cheque was issued for discharge of liability arise. The petitioner failed to rebut the said presumption by adducing cogent, consistent and acceptable evidence. Therefore, the Courts below were justified in holding that the cheque Ex.P1 was issued by petitioner towards discharge of his liability. Acceptance of affidavit evidence of the petitioner - HELD THAT:- The original proceedings were of the year 2002. The petitioner having submitted his evidence by way of affidavit voluntarily, now in this revision petition, for the first time after more than a decade is trying to claim that in accepting his affidavit, the trial Court has committed jurisdictional error. The said contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through his account in Canara Bank, Chandragutti Branch, Shimoga. The said Cheque was returned with banker's memo as per Exs.P2 to P4 with the endorsement that 'payment stopped by the drawer'. 4. The respondent issued notice dated 07.02.2002 as per Ex.P5 to the petitioner alleging that having issued the Cheque towards discharge of his debt due to him, the petitioner has issued stop payment instructions to the banker to defraud him. Under the notice Ex.P5, the respondent called upon the petitioner to pay the Cheque amount within 15 days or else to face the prosecution. To the notice Ex.P5, the respondent issued reply as per Ex.P6 on 04.03.2002 denying his liability and issuance of the Cheque. He alleged that the Cheque and the related documents were concocted by the respondents to cheat the petitioner. 5. Thereafter, the respondent filed complaint before the Trial Court to prosecute the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act. The learned Magistrate on taking cognizance, registered the case in C.C.No.905/2002, summoned the petitioner and tried him. 6. In support of his case, the respondent got examined himself as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Sri.P.Hanumanthappa v/s G.H. Chandru Crl.R.P.No.659/2011 D.D. 31.01.2014 12. Per contra, Sri. Adithya Kumar H.R., learned counsel for the respondent seeks to justify the impugned orders of the Courts below on the following grounds: (i) The petitioner admitted that the Cheque - Ex.P1 pertains to his account; and (ii) The petitioner did not assert in the cross-examination that the signature in Ex.P1 was not his signature and he did not seek the reference of Ex.P1 to the hand writing expert's opinion to prove that signature is forged one. (iii) The respondent claimed that Nagapathi Narayanappa stole his Cheque book, forged his signatures and setup the respondent and others to file the cases under Section 138 of the Negotiable Instruments Act. Though he filed a complaint before the Magistrate to prosecute Nagapathi Narayana Hegde, that the complaint was dismissed for non-prosecution. Therefore, the said defence does not survive. (iv) The respondent in his evidence stated that he is agriculturist and having sufficient land for cultivation and that was not disputed in his cross-examination. (v) In reply notice, the petitioner did not take the defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the said Nagapathi Narayana Hegde took away all those records and facilitated the respondent to file a complaint. He claimed that in that regard, he was prosecuting the said Nagapathi Narayana Hegde by filing a complaint. 19. In the reply Ex.P6 at the earliest point of time no such defence was taken with regard to the commission of fraud or Nagapathi Narayana Hegde taking away cheque books etc., It was not his case that while issuing stop payment instructions with regard to Ex.P1 the allegations of forgery or theft of the cheque book were made. The bank authorities were not examined to prove such claim. 20. Petitioner relied on Ex.D.8 to contend that he informed the bank that his cheque book containing cheque leaves from 018350 to 018375 was stolen by somebody, therefore, if any cheque is tendered that shall not be honoured. Ex.D8 itself shows that it was tendered in the bank on 10.04.2002. But prior to that the petitioner issued reply Ex.P.6 on 04.03.2002. In Ex.P6, as already noticed, there was no allegation of theft of the cheque book. 21. The cheque was not dishonoured for any variations in the signature. DW.1 in his cross examination did not assert that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the complainant and witnesses by affidavit. 26. It is no doubt true that in M/s. Mandvi Co- op. Bank Ltd.'s case the Hon'ble Supreme Court held that Section 145 of NI Act contemplates the receipt of evidence by affidavit only that of the complainant and the witnesses and that option does not extend to the accused. However, in later judgment in Indian Bank Association's case referred to supra the Hon'ble Supreme Court while laying the guidelines for conducting trials in the cases involving the offence under Section 138 of NI Act in 23.5 of the guidelines held as follows: 23.5 The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses instead of examining them in the Court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the Court. (Emphasis supplied) 27. The Hon'ble Supreme Court in Srinath and another v/s Rajesh and others AIR 1998 SC 1897 held that in interpreting any proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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