Research › Search › Judgment

Madhya Pradesh High Court · body

2023 DIGILAW 305 (MP)

Jayprakash Gupta v. Lakshmi Electricals Shahdol

2023-02-24

ANJULI PALO

body2023
JUDGMENT Anjuli Palo, J. - In this petition under Section 482 of the Code of Criminal Procedure, the petitioner has challenged the validity of the order dated 07.06.2016 passed by learned Sessions Judge in Criminal Revision No.20 of 2016 whereby the revisional Court has partially allowed the revision of the petitioner but the prayer of the petitioner for examination of the cheque by handwriting expert under Sections 45 and 47 of the Evidence Act has been rejected. 2. The facts, in a nutshell, are that the respondent has filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner. During trial, the petitioner moved an application under Section 311 of the Cr.P.C. and another application under Section 45 and 47 of the Evidence Act seeking permission from the Court to get the cheque in question examined by the handwriting expert. The application for examination of the instrument by handwriting expert was rejected by the trial Court on 16.01.2016 stating that opinion of the expert is not necessary in the present case. Being aggrieved with the said order, the petitioner preferred a revision before the Sessions Court. The revisional court vide impugned order dated 07.05.2016 (Annexure P-2) affirmed the order of the trial Court so far as it pertains to rejection of the application under Sections 45 and 47 of the Evidence Act. 3. Learned counsel for the petitioner has vehemently contended that the basic defense of the petitioner is that the cheque in question has not been issued by him in favour of the respondent in lieu of any commercial transaction, however, the same was issued to him only as a security and it is also the defense of the petitioner that the petitioner had not mentioned any date, amount or name on the cheque and in order to prove that the handwriting on the cheque was not his, opinion of the handwriting expert is necessary. The Courts below have absolutely ignored the settled legal position that if there is signature of the accused on the blank cheque and there is difference in the writing on the cheque, the handwriting expert is required to be examined for arriving on proper conclusion. The Courts below have absolutely ignored the settled legal position that if there is signature of the accused on the blank cheque and there is difference in the writing on the cheque, the handwriting expert is required to be examined for arriving on proper conclusion. In support of his contentions, counsel for the petitioner has placed heavy reliance on the decisions in the cases of Sohanlal Singhal v. Sunil Jain, 2015 (1) MPLJ 422, Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258 , Abhishek v. (2) MPLJ 472 and M.S. Narayanana Menon v. State of Kerala and Another, (2006) 6 SCC 39 4. On the other hand, learned counsel for the respondent has submitted that it is not disputed that the cheque in question was signed by the petitioner and therefore, the Court below has rightly rejected the application for examination by handwriting expert. It is further contended that it is admitted position that the cheque was given by the petitioner to the respondent for security purpose. Counsel for the respondent has referred to Section 20 of the Negotiable Instruments Act and has also drawn attention of this Court to the notice sent by the petitioner wherein it has been mentioned that the cheque in question was given by the petitioner by putting signature on it for the security purpose. In support of his contentions, counsel for the respondent has placed reliance on the order dated 01.12.2014 passed by Gwalior Bench of this Court in CRR No.56 of 2014 5. Heard learned counsel for the parties at length and perused the documents. I have also perused the decisions cited by the parties 6. The respondent - complainant preferred a complaint under Section 138 of the Negotiable Instruments Act against the petitioner as the cheque issued by the accused petitioner was dishonoured. The stand of the petitioner is that there was business relationship between the parties and the cheque was issued by the petitioner only for the purpose of security which was misused by the complainant. The petitioner filed an application under Sections 45 and 47 of the Indian Evidence Act for opinion of the handwriting expert regarding date, amount, signature and other entries mentioned in the questioned cheque. The said application was rejected by the trial Court and the lower revisional court affirmed the said order by the impugned order. 7. The petitioner filed an application under Sections 45 and 47 of the Indian Evidence Act for opinion of the handwriting expert regarding date, amount, signature and other entries mentioned in the questioned cheque. The said application was rejected by the trial Court and the lower revisional court affirmed the said order by the impugned order. 7. In this context, it is apposite to refer to Section 139 of the NI Act which states as under: "139. Presumption in favour of holder. - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. 8. In the decision rendered in the case of Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 after discussing the settled line of precedent Hon'ble the Supreme Court has held thus: 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 payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. Xxx xxxx xxx 36. Even a blank cheque leaf, voluntarily signed and handed over by t h e accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." (emphasis supplied) See also: Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283 . 9. 9. In the present case, the main ground of the petitioner is that the cheque was not issued to be encashed by the respondent but it was given to be kept only for security purpose of the routine transaction between the parties. It is pertinent to mention here that in the reply to the notice of the complainant, the petitioner himself mentioned that he gave a blank cheque by signing it for the purpose of guarantee. The petitioner had admitted that he had issued signed blank cheque, but other entries were filled by the complainant himself. 10. 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. In the cases of Anss Rajashekar v. Augustus Jeba Ananth, (2020) 15 SCC 348 and Rangappa v. Sri Mohan, (2010) 11 SCC 441 on the presumption under Section 139 of the NI Act Hon'ble the Supreme Court court held that Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, 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 Hon'ble the Supreme Court in Rangappa (supra) 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. It has been held that 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 when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities"Â. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. In the case of Oriental Bank of Commerce v. Prabodh Kumar Tewar, 2022 SCC OnLine 1089 it has been held that for such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. 11. Thus, 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 relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability. 12. In view of the preceding analysis, this Court is of the considered opinion that the Courts below have rightly rejected the application preferred by the petitioner for examination of handwriting expert. Consequently the M.Cr.C. being devoid of merit, stands dismissed.