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TMI Blog2022 (9) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, no purpose is served by allowing the application for adducing the evidence of the hand-writing expert. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in discharge of a liability. The presumption arises under Section 139. The fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the appeal is whether the High Court was correct in permitting the respondent to engage a hand-writing expert to determine whether the details that were filled in the cheque were in the hand of the respondent. For the reasons set out below, we have allowed this appeal against the order of the High Court for the reason that Section 139 of the NI Act raises a presumption that a drawer handing over a cheque signed by him is liable unless it is proved by adducing evidence at the trial that the cheque was not in discharge of a debt or liability. The evidence of a hand-writing expert on whether the respondent had filled in the details in the cheque would be immaterial to determining the purpose for which the cheque was handed over. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Delhi for an offence punishable under Section 138 of the NI Act. Notices were framed against the first and second respondent under Section 251 of the Code of Criminal Procedure 1973 ( CrPC ). 7. During the course of the trial, on 12 February 2018, the Metropolitan Magistrate 2 recorded the statements of the first and second respondents under Section 313 CrPC. The first respondent has stated that he is a director in all the five companies; he was an authorized signatory; and a blank signed cheque was given by him towards security. Therefore, there is no dispute that the cheque bears the signature of the first respondent. 8. The first and second respondents filed an application before the Trial Judge seeking to have the cheque in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the settled line of precedent of this Court on this issue, a two-Judge Bench held: 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge, in whole or in part, of a debt, or liability. The expression unless the contrary is proved indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a reverse onus clause the three-Judge Bench of this Court in Rangappa held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities. This Court held thus: 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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