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TMI Blog2022 (10) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint under Section 138 of the Negotiable Instrument Act against the petitioner in the year 2010 before the learned Metropolitan Magistrate at Calcutta alleging, inter alia, that the complainant deals with a wholesale and retail business of gold jewellery. The accused is also engaged in the same business. The complainant sold and supplied gold jewellery to the accused amounting to Rs.60,59,387/- through their invoice No.4136 dated 19th January, 2010. In discharge of his existing liability, the accused issued one account payee cheque in favour of the complainant/company on 19th January, 2010 drawn on Bank of India Bidhannagar Branch for sum of Rs.60,59,387/-. The complainant duly presented the said cheque for encashment but it was dishonoured vide Memorandum of dishonor dated No.22nd January, 2010. After the said cheque being dishonoured complainant issued legal notice to the petitioner requiring him to pay the said amount in discharge of his debt or existing liability however, the said demand notice was returned with postal endorsement "not claimed". Subsequently, the complainant filed the complaint under Section 138 of the Negotiable Instrument Act before the learned Chief Metr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner Sunil Chandra is the proprietor of M/s Chandra Gold. PW1 specifically stated that Soumen is not related to Chandra Gold. Mr. Banerjee also refers to the relevant portions of cross examination of PW1 where he stated that the signature of accused person appears in left side of Exhibit-2. It is also submitted by him that the petitioner deposed before the trial court as DW1. During his cross examination as many as three bills issued by the complainant was confronted with the petitioner. The petitioner admitted his signature on the said bills. The said bills were marked Exhibit-7/1, 8/1 and 9/1. Learned Advocate for the petitioner invites this court to compare the signatures appearing on Exhibit-7, 8 and 9 with the signature appearing on Exhibit-2. It is clearly found on comparison in bare eyes with the signatures on Exhibit-7, 8 and 9 are not by the same person who signed Exhibit-2. Therefore, the petitioner prayed for examination of the signature appearing on Exhibit-2 with the admitted signature of the petitioner appearing on Exhibit-7, 8 and 9. 9. Mr. Bhattacharya, learned Advocate for the opposite party, on the other hand submits that the petitioner filed the said applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to the contrary. It is held by the Hon'ble Supreme Court in Bir Singh vs. Mukesh Kumar reported in (2019) 4 SCC 197 that the presumption under Section 139 of the Negotiable Instruments Act is not in conflict with human right of presumption of innocence of accused which prosecution is required to dislodge by proving its case against the accused beyond reasonable doubt. 12. Thus primary burden is on the prosecution to prove the ingredients of offence under Section 138 of the Negotiable Instrument Act beyond reasonable doubt. Only when the complainant discharges his/her burden, onus shifts upon the accused to rebut the presumption available in favour of the complainant under Section 138 of the Negotiable Instruments Act. Let me state the factual background relevant for the disposal of the instant revision. It is pertinent to note that the complainant in order to discharge his/her initial burden produce bill No.4136 dated 19th January, 2010 and claimed that in discharge of his existing debt or liability, the petitioner had issued the said cheque for an amount of Rs.60,59,387/-. The said bill has been exhibited during trial. 13. The petitioner disputed the authenticity of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant. (b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant. (c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.." 16. Section 47 of the Indian Evidence Act states that opinion of a handwriting expert or any person who is acquainted with the handwriting of the person by whom it is supposed to be written or signed are admissible. 17. According to Section 67 of the Evidence Act, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t opinion with the documents admittedly signed by the petitioner. In M.S Narayana Menon @ Mani vs. State of Kerala & Anr. reported in (2006) 6 SCC 39, the issue of presumption under Sections 118(a), 138 and 139 of the Negotiable Instruments were drawn for consideration came up before the Hon'ble Supreme Court for adjudication. The Hon'ble Supreme Court was pleased to hold that the court has to presume a negotiable instrument put for consideration unless the existence of consideration is disproved. It is further held by the Hon'ble Supreme Court that in view of Section 118(a) and Section 139, the initial burden of proof is on the accused to rebut the presumption of law by raising a probable defence. If he discharges the said burden, the onus thereafter shifts on to the complainant to prove his case. The ratio laid down in Narayana (Supra) is where the case of the complainant is based on statutory presumption under Section 139 of the Negotiable Instruments Act. However, where the complainant comes up with a document claiming to be executed by the accused confirming his existing debt or liability, complainant is under obligation to prove the said document beyond any reasonable doubt. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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