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2024 DIGILAW 1035 (ALL)

Dinesh Dixit v. State of U. P.

2024-04-10

YOGENDRA KUMAR SRIVASTAVA

body2024
JUDGMENT : Yogendra Kumar Srivastava, J. 1. Heard Sri Sita Ram Sharma, learned counsel for the petitioner and Sri Pankaj Srivastava, learned AGA-I appearing for the State-respondent. 2. The present petition has been filed seeking to assail the order dated 25.7.2023 passed in Complaint Case No. 3553 of 2014, under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) in terms of which the application filed by the petitioner seeking a direction to get the hand writing in which the amount and the date had been filled up on the cheque, be referred for examination to the Forensic Science Laboratory (FSL), has been rejected. The subsequent order dated 24.8.2023 whereby the criminal revision filed thereagainst, was dismissed, is also sought to be assailed. 3. Learned counsel for the petitioner has sought to assail the order rejecting the application seeking reference to the FSL by submitting that the signatures of the petitioner had been obtained on the cheque under coercion, and accordingly an application dated 17.7.2023 was submitted for getting the hand writing in which the date and the amount had been filled up on the cheque, verified by the FSL. 4. It is sought to be contended that the learned Magistrate has erred in rejecting the aforesaid application moved by the petitioner and that the revisional Court has also erred in dismissing the revision filed thereagainst. 5. Learned AGA-I has submitted that once the petitioner had admitted his signatures on the cheque, the hand writing in which the date and the amount had been filled up would not be material inasmuch as there is no requirement under law that the said particulars be filled up by the drawer of the cheque. 6. In order to consider the rival submissions, the relevant provisions under the NI Act are being referred to: “118. Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made: (a) of consideration:-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. (b) as to date:-that every negotiable instrument bearing a date was made or drawn on such date. (c) as to time of acceptance:-that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity. (b) as to date:-that every negotiable instrument bearing a date was made or drawn on such date. (c) as to time of acceptance:-that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity. (d) as to time of transfer:-that every transfer of a negotiable instrument was made before its naturity. (e) as to order of indorsements:-that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on. (f) as to stamp:-that a lost promissory note, bill of exchange or cheque was duly stamped. (g) that holder is a holder in due course:-that the holder of a negotiable instrument is a holder in due course: provided that, where the instrutment has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless: (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation - For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability. 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.” 7. The purpose of the presumptions under Sections 118 and 139 was examined in Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 and it was held that the presumptions under the aforesaid sections come into existence as soon as complainant proves that the negotiable instrument was executed by the accused; the said presumptions, were however, held to be rebuttable. The observations made in this regard, are as follows: “13. In a significant departure from the general rule applicable to contracts, Section 118 of the Act provides certain presumptions to be raised. This section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp, and (vii) as to holder being a holder in due course. 14. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp, and (vii) as to holder being a holder in due course. 14. Section 139 of the Act provides that 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. 15. Presumptions are devices by use of which the Courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) “may presume” (rebuttable), (2) “shall presume” (rebuttable) and (3) “conclusive presumptions” (irrebuttable). The term “presumption” is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the “presumed fact” drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means “taking as true without examination or proof.” 16. Section 4 of the Evidence Act inter alia defines the words “may presume” and “shall presume” as follows: “4. 'May presume'.-Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it: 'Shall presume'.-Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved: ***” In the former case, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved. 17. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved. 17. Section 118 of the Act, inter alia, directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of whole or part of any debt or liability. 18. Applying the definition of the word “proved” in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase “until the contrary is proved” in Section 118 of the Act and use of the words “unless the contrary is proved” in Section 139 of the Act read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.” 8. The purpose, scope and function of the presumption under Section 139 NI Act, was further explained in Rangappa v. Srimohan, (2010) 11 SCC 441 and it was held that Section 139 is an example of a 'reverse onus clause' that has been included in furtherance of the legislative object of improving the credibility of negotiable instruments, and the rebuttable presumption created under Section 139 is a device to prevent undue delay in the course of litigation. It was held as follows: “27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof. 28. 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.” 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.” 9. The presumption of law under Section 139 that a cheque duly signed by the drawer and handed over to the payee, was in discharge of a debt or liability, and the drawer remains liable unless he adduces evidence to rebut the presumption, was again subject-matter of consideration in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 and it was held that if a cheque is duly signed by the drawer and is otherwise valid, the mere fact that the amount and other particulars have been filled up by the payee, would not invalidate the cheque. The observations made in the judgment in this regard are as follows: “32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 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. 36. 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. 36. Even a blank cheque leaf, voluntarily signed and handed over by the 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.” 10. The rebuttable nature of presumption under Section 139 was again considered in Anss Raja Shekhar v. Augustus Jeba Ananth, (2020) 15 SCC 348 and it was held that the standard of proof to rebut the said presumption is preponderance of probabilities, and in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. It was observed as follows: “12. 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 this Court in Rangappa 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.” 11. The effect of an admission regarding signatures on a cheque was examined in M/s. Kalamani Tex and another v. P. Balasubramanian, (2021) 5 SCC 283 and reiterating the view taken in the case of Bir Singh (supra), it was held that in such a case there would be a presumption that the cheque was issued as consideration for a legally enforceable debt. 12. 12. Having regard to the foregoing discussion, it can be stated that a drawer who signs a cheque and hands it over to the payee, would be presumed to be liable unless he is able to adduce the evidence to rebut the presumption under Section 139 that the cheque had been issued towards the payment of a debt or discharge of liability. 13. The provisions of Sections 118 and 139 of the NI Act create a presumption that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of a debt or liability, once the execution of the negotiable instrument is either proved or admitted. No sooner the complainant discharges the burden to prove that the instrument was executed by the accused, the rules of presumption under Sections 118 and 139 would shift the burden to the accused and it would be for the accused to prove that the cheque was not issued for consideration for discharge of any debt or liability. 14. The use of expression 'until the contrary is proved' in Section 118, and the use of the phrase 'unless the contrary is proved' in Section 139, read with the definitions of 'may presume' and 'shall presume', under Section 4 of the Indian Evidence Act, 1872 (the Evidence Act), are clearly indicative that the presumptions raised under Sections 118 and 139 of the NI Act, are rebuttable. 15. Section 139 has been held to be an example of a 'reverse onus clause' that has been included in furtherance of the legislative objective of improving credibility of negotiable instruments. 'Reverse onus clauses', in the absence of compelling justifications, usually have the effect of imposing an evidentiary burden, and the standard of proof for doing so would have to be guided by the 'preponderance of probabilities', and by applying the 'test of proportionality'. 16. In the case at hand, the petitioner has not disputed that the cheque bears his signature; rather there is a clear admission in this regard. 17. The only contention which is sought to be put forward is that the date and the amount on the cheque has not been filled up by the petitioner. 18. The mere fact that the particulars in the cheque have not been filled up by the drawer but by some other person would not be material, and would not by itself invalidate the cheque. 18. The mere fact that the particulars in the cheque have not been filled up by the drawer but by some other person would not be material, and would not by itself invalidate the cheque. The presumption which arises upon the cheque having been signed by the drawer and handed over to the payee would not be rebutted on the basis of an FSL report, even if the same indicates that the other details in the cheque have not been filled up by the drawer but by some other person. 19. Counsel for the petitioner has not been able to dispute that there is no requirement under law that the body of the cheque is to be mandatorily filled up by the drawer. 20. There being a clear admission that the cheque was duly signed by the petitioner as drawer and there being no requirement under law that the body of the cheque is to be filled up by the drawer himself, in his own hand writing, the application seeking reference of the cheque to the FSL for examining the hand writing in which the date and amount had been filled up would be of no consequence and would not in any manner tilt the balance of the case in favour of either of the parties. 21. The argument sought to be raised that only a blank signed cheque had been procured by the respondent, even if taken at face value, was not obliterate the statutory presumption under Section 139 of the NI Act, unless cogent evidence is adduced to rebut the presumption. 22. The contention which is sought to be raised by the petitioner with regard to the cheque having been obtained under coercion would be a plea of defence regarding which it would be open to the petitioner to adduce evidence to support his contention before the Court where the proceedings are stated to be pending. 23. In the entirety of the aforesaid circumstances, the rejection of the application filed by the petitioner seeking the reference of the cheque to the FSL for getting the hand writing in which the body of the cheque had been filled up, cannot be faulted with. 24. 23. In the entirety of the aforesaid circumstances, the rejection of the application filed by the petitioner seeking the reference of the cheque to the FSL for getting the hand writing in which the body of the cheque had been filled up, cannot be faulted with. 24. The order passed by the learned Magistrate, and also the order passed by the revisional Court, which are sought to be assailed in the present petition, cannot be said to suffer from any error, illegality or perversity, so as to warrant interference. 25. This Court, accordingly, is not inclined to exercise its supervisory jurisdiction under Article 227 of the Constitution of India in the facts of the case. 26. The petition thus fails and is dismissed.