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2013 DIGILAW 431 (HP)

SUBHASH CHAND v. SHADI LAL

2013-05-16

SANJAY KAROL

body2013
JUDGMENT SANJAY KAROL, J 1. PARTIES, who were present in the Court, were asked to settle the matter, in terms of the judgment rendered by the apex Court in Damodar S. Prabhu versus Sayed Babalal H. (2010) 5 SCC 663 . Learned counsel for the parties fully cooperated. But however, petitioner Subhash Chand (hereinafter referred to as the accused) had certain reservations. 2. AS such, the matter was admitted and with the consent of the parties taken up for hearing. Respondent Shri Shadi Lal (hereinafter referred to as the complainant) filed a complaint, under the provisions of Negotiable Instruments Act, 1881 against the accused. As per the complaint, accused had issued a cheque dated 24.9.2010 for an amount of Rs.1,92,000/- towards discharge of his liability. Upon presentation, the same was not honoured. Though complainant sent a legal notice yet the amount was not paid. 3. AFTER evidence of the parties was closed, accused filed an application, under the provisions of Section 45 of the Indian Evidence Act, 1872, praying that the cheque in question be sent to a handwriting expert for comparing the handwritten contents of the cheques with the handwriting of the complainant. 4. SPECIFIC defence of the accused is that he never issued the cheque in question in favour of the complainant. He had signed the leaves of the cheque book and the body of the cheque was left blank. The cheque book was lost and the complainant who found the same has misused the same. In this regard, the bank was also informed. As such, a prayer was made to have the handwritten contents of the cheque compared with the handwriting of the complainant. Complainant refuted the averments, categorically stating that the accused deals in the sale and purchase of vegetables. Complainant, who is an agriculturist, had supplied potatoes to the accused in September, 2010 and separate cheques were issued in partial discharge of liability towards the said commercial transactions. 5. THIS application stands dismissed by the learned Chief Judicial Magistrate, Lahaul & Spiti, at Kullu, vide impugned order dated 8.10.2012, passed in Cr.M.A No.23- IV/2012, titled as Shadi Lal versus Subhash Chand. Hence the present petition. 6. IT is urged on behalf of the accused that the trial Court erred in making the following observations: "4. Be it stated that the accused has not disputed his signatures on the cheque in dispute. Hence the present petition. 6. IT is urged on behalf of the accused that the trial Court erred in making the following observations: "4. Be it stated that the accused has not disputed his signatures on the cheque in dispute. The specific contention of the accused is that his signed cheque book containing the cheque in dispute, was lost somewhere. Meaning thereby the accused intends to convey that the complainant found his lost cheque book containing cheque in dispute. Such contention of the accused is hypothetical. The accused neither reported the matter to the police nor to the bank in this behalf. What was the necessity to keep signed cheque in the cheque book. As per the complainant the accused is a business man, deals in sale and purchase of vegetables, potatoes etc and in the month of September, 2010, he purchased potatoes from the complainant and issued the cheque in dispute in his favour. In such circumstances, the hypothetical proposition propounded by the accused that the complainant found lost signed cheque in dispute and misused in the present complaint is not at all acceptable and as such, the instant application for comparison of handwriting on the body of the cheque is devoid of merits." It is also urged that keeping in view the ratio of law laid down in Pawan Kumar versus State of Haryana, (2003) 11 SCC 241 ; and Damara Venkata Kurali Krishna Rao versus Gurujupalli Satvathamma, (2008) 12 SCC 170 , application ought to be allowed. 7. RECORD reveals that the complaint was filed on 25.3.2011; complainant's witnesses were examined on 5.6.2012; statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, 1973 was recorded on 9.7.2012; in his defence, accused examined one witness on 4.9.2012 and also closed his defence. It was on this day that the accused moved the application in question, which stands rejected in terms of the impugned order. To my mind application was filed only to delay the proceedings. 8. SIGNIFICANTLY accused does not deny his signatures on the cheque. The fact as to whether the cheque was issued in discharge of his liability or not is a question which needs to be examined and determined by the trial Court. Significantly, the accused, in the application, has not specifically disclosed or mentioned that it was the complainant who had filled-up the body of the cheque. The fact as to whether the cheque was issued in discharge of his liability or not is a question which needs to be examined and determined by the trial Court. Significantly, the accused, in the application, has not specifically disclosed or mentioned that it was the complainant who had filled-up the body of the cheque. Under the provisions of Section 139 of the Negotiable Instruments Act, 1818, there is a legal presumption that the cheque is issued in discharge of an antecedent liability. This presumption in favour of holder of the cheque is however rebuttable, by the person who draw the cheque. The burden to prove such defence is upon the accused. The accused can adduce evidence to rebut such presumption. (Anil Hada versus Indian Acrylic Ltd., (2000) 1 SCC 1 ). 9. IN the instant case, accused has admitted the cheque to have been signed by him. Whether the accused has rebutted the presumption with regard to the cheque not issued in discharge of his liability or whether the cheque was misused by the accused or not is a question which needs to be examined by the trial Court. Any finding on the same at this juncture would only prejudice the rights of the parties. It is for this reason that this Court has also not gone into the submission of the learned counsel for the complainant that the defence taken by the accused is false, as the accused himself has used certain cheques having subsequent serial numbers, out of the cheque book, which was allegedly lost. 10. SINCE the accused has admitted his signatures on the instrument, ratio of law laid down by the apex Court in Pawan Kumar(supra) and Damara Venkata Kurali Krishna Rao(supra), referred to and relied upon by the learned counsel for the accused is totally inapplicable in the given facts and the circumstances. As such, for all the aforesaid reasons, I find no merit in the present petition and the same is dismissed. However, it stands clarified that trial Court shall adjudicate and decide the complaint uninfluenced by any observation made in the impugned as also this order. Revision Petition stands disposed of, so also the pending application(s), if any. Record be immediately sent back. Parties are directed to appear before the trial Court on 18th June, 2013.