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2002 DIGILAW 264 (MAD)

Rejikumar v. Sukumaran

2002-03-25

M.R.HARIHARAN NAIR

body2002
JUDGMENT: The complainant in C.C.No. 119 of 1996 of the Judicial First Class Magistrate's Court, Adimaly, is aggrieved that his complaint filed under Sec. 138 of the Negotiable Instruments Act with regard to Ex.P-1 cheque for Rs. 7,000 ended in acquittal of the present respondent based on the evidence of P.Ws.1 and 2, D.W.1 and Exs.P-1 to P-6 and D-1. 2. The learned counsel for the appellant submitted that the complainant is entitled to a presumption regarding genuineness and passing of consideration with regard to the cheque and the acquittal of the accused was unjustified. It was also pointed out that there was failure on the part of the accused to subject the signature of the drawer in Ex.P-1 to expert examination and that as such his contention that Ex.P-1 was not signed by him is unacceptable. 3. On the arguments advanced in the case, the points that arise for decision are: (1) Whether Ex.P-1 is a cheque issued by the respondent. (2) Whether the accused has committed the offence under Sec. 138 of the Negotiable Instruments Act. 4. Point No. 1: Even though the accused had not sent any reply to Ex.P-3 notice intimating the dishonour of the cheque, in spite of its receipt on 30.3.1996 as evidenced from Ex.P-5, it is stated in his answer to the questions under Sec. 313 of the Crl.P.C. that the appellant was his friend and he used to visit the vegetable shop of the accused. He also stated that there was possibility that the complainant got hold of a cheque leaf in some manner and that he never signed in Ex.P-1 cheque. In short, the case made out is that Ex.P-1 is not a cheque actually executed by the accused or delivered to the complainant. In such a case, the presumption under Secs. 118 and 139 of the Negotiable Instruments Act would not apply. For the presumption to apply issuance of the cheque has to be admitted or proved. 5. Even assuming that any presumption in favour of the complainant exists, there is evidence available in the case to disprove the same. Even though as P.W.2, the Manager of the Bank in which the account mentioned in Ex.P-1 is maintained, stated that the reason given for dishonour of the cheque was want of funds, he answered further that he had not verified then whether the signature contained was that of the accused. Even though as P.W.2, the Manager of the Bank in which the account mentioned in Ex.P-1 is maintained, stated that the reason given for dishonour of the cheque was want of funds, he answered further that he had not verified then whether the signature contained was that of the accused. In the circumstances, the accused took up the burden of summoning the relevant records and the same Manager as D.W.1, produced Ex.D-1 which is the specimen signature card with regard to the account and also deposed that there was no similarity in the signatures contained in Ex.D-1 and Ex.P-1. He also stated that the said ground was not mentioned in Ex.P-2 memo of dishonour as the first verification made on the presentation of the cheque was to see whether there was sufficient credit balance and that in this case as there was no sufficient balance in the account, that reason alone happened to be endorsed in Ex.P-2. In fact the occasion for comparison of signatures did not arise then. 6. I have carefully compared the signatures of the drawer of the cheque as available in Ex.P-1 with those contained in Ex.D-1 as also in the statement given by the accused under Sec. 313 of the Crl.P.C; in Ex.P-5 and in the vakalath executed in the trial Court. What is seen is that there is unanimity in the signatures appearing in all the documents except in Ex.P-1 which is totally dissimilar to the others. It is very obvious that Ex.P-1 does not contain the real signature of the accused. 7. Point No. 2: It is true that the accused had not sent any reply to Ex.P-3 notice and this circumstance goes against the accused. I also notice the fact that in the answer to the last question put under Sec. 313 of the Crl.P.C, the accused had admitted that there was subsisting liability for Rs. 1,518. Notwithstanding these facts, there is no possibility to convict the accused for the offence under Sec. 138 of the Negotiable Instruments Act in so far as the signature available is shown to be not of the accused and execution remains unestablished. Probably he is answerable for an offence under Sec. 420 of the I.P.C.; but in the present case the only question to be looked into is liability under Sec. 138 of the Negotiable Instruments Act. Probably he is answerable for an offence under Sec. 420 of the I.P.C.; but in the present case the only question to be looked into is liability under Sec. 138 of the Negotiable Instruments Act. It is incumbent upon the complainant, to establish a case under Sec. 138 of the Negotiable Instruments Act, that the cheque was dishonoured only for want of funds in the account and not for the reason that, the signature differed. In a case where there is no proof of issuance of cheque and the cheque could not have been passed for payment owing to the ground of disparity in signature, there is no question of convicting the accused. Viewed from the said perspective I find that the complainant has not discharged his burden to show that the accused has committed the offence under Sec. 138 of the Negotiable Instruments Act. 8. In the circumstances, the appeal fails and it is accordingly dismissed. V.K.-----Appeal dismissed.