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2006 DIGILAW 887 (BOM)

Rajendra Prasad v. M. Shivaraj

2006-06-15

K.SREEDHAR RAO

body2006
JUDGMENT :- The respondent-accused issued cheque Ex.P-1 for Rs.60,000 towards payment of debt liability. Ex.P-1 is dishonoured on its presentation. Statutory notice is issued and a private complaint is filed. Per contra, the accused contends that he has not borrowed any loan and he has not issued the cheque Ex.P-1 to the complainant. The signature of Ex.P-1 is disputed, 2. The loan of Rs.60,000/- was paid by P.W.1 to the accused on 10-11-96 in the presence of one Vijaykumar Reddy. P.W.3 in his evidence states that a loose cheque - Ex.P-1 was issued to the accused on 7-12-95. Except the signature of the accused on the cheque, the rest of the contents are not in his hand and the ink is different. The Court finds that there is discrepancy between the evidence of P.W.2 and P.W.1 with regard to payment of Rs.60,000/- and issuance of cheque. In view of the said reason, the Court acquitted the accused holding that the existence of the debt liability is not established. 3. P.W.3 no doubt makes a statement that the loose cheque leaf has been issued to the accused on 7-12-95. But in the cross- examination, admits that he was not Manager who has issued the cheque leaf. He was giving evidence without the aid of records of the bank to say that the cheque leaf is issued on 7-12-95. Therefore, the version of P.W.3 that the cheque leaf was issued on 7-12-95 is not convincingly established. Even assuming it to be true, it is not explained by the accused as to how the cheque issued to him came into possession of the complainant. With regard to the signature on Ex.P-1, the Court takes upon itself the scrutiny of the signature by naked perusal without any expert's opinion in that behalf. The Court is a final arbitrator to express opinion in the matter of disputed hand writings but while expressing the opinion, it is necessary that the Court should be assisted by eXpeJ1'S opinion or any other strong circumstances to prove the execution of the document. In the instant case, the Court has done a dangerous exercise of naked comparison of the signatures of the accused on the cheque with the other admitted signatures and comes to the conclusion that the signature on the cheque does not appear to be the signature of the accused. 4. In the instant case, the Court has done a dangerous exercise of naked comparison of the signatures of the accused on the cheque with the other admitted signatures and comes to the conclusion that the signature on the cheque does not appear to be the signature of the accused. 4. The banker of the accused is more competent person to say whether it is the signature of the accused or not with reference to the specimen signature. In the bank's intimation, the discrepancy of the signature with the specimen signature is not the ground for dishonour. In the instant case, the banker does not mention that the signature is discrepant and does not tally with the specimen signature. Therefore, the self-serving denial of signature in Ex.P-1 cannot be a good evidence to come to the conclusion that the signature on EX.P-1 is not that of the accused. The banker's no objection for the signature in EX.P-1 is one of the strongest circumstance to corroborate that the signature on EX.P-1 is that of the accused. The possession of the loose cheque with the complainant suggests an inference of endorsement and delivery of inchoate instrument which impliedly admits the issuance of cheque in favour of the complainant. 5. On the question of consideration. P.W.1 states that he has paid Rs.60,000 in the month of November, 1996 in the presence of P.W.2. The evidence of P.W.2 supports the version of P.W.1. It is neither in the evidence of P.W.1 nor in the evidence of P.W.2 that the cheque - Ex.P.1 was issued at the same time when the loan was lent. There is no inconsistency between the evidence of P.Ws.1 and 2 with regard to payment of loan. 6. It is to be noted that when once the issuance of the cheque is validly established, the presumption would arise u/S.139 of the N.I. Act in favour of the complainant. In the instant case, the evidence placed by the complainant fully establishes the issue of cheque by the accused. Therefore presumption would arise u/S.139 of N.I. Act. The accused apart from his oral testimony, has not adduced any evidence to rebut the presumption. The reasons stated by the trial Court in acquitting the accused are bad in law. The accused is convicted under Section 138 of the N.I. Act. Therefore presumption would arise u/S.139 of N.I. Act. The accused apart from his oral testimony, has not adduced any evidence to rebut the presumption. The reasons stated by the trial Court in acquitting the accused are bad in law. The accused is convicted under Section 138 of the N.I. Act. The accused is sentenced to pay a fine of Rs.1,20,000, in default to suffer SI for a period of one year. Out of fine amount, the complainant shall be paid a compensation of Rs.1, 10,000/-. Appeal allowed.