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2024 DIGILAW 53 (HP)

Tilak Raj v. Dharam Singh

2024-01-09

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, J. The present petition has been filed for assailing the order dated 3.3.2023, passed by learned Judicial Magistrate First Class (JMFC), Thunag, District Mandi, H.P. vide which, the application filed under Section 243 Cr.P.C. read with Section 73 of Indian Evidence Act for comparing the handwriting of the particulars filled in the cheque was dismissed. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. The complainant has filed a complaint against the accused for the commission of an offence punishable under Section 138 of the NI Act. The complaint was listed for arguments on 3.3.2023 when the application was filed and was disposed of. 3. It was asserted in the application that the cheque was not written by the accused, the amount was also not mentioned by him. The cheque was issued by the accused and there is no legal liability against the accused. The complainant stated that the cheque was filled by the accused and the accused had issued bill No. 01204 to the complainant duly signed by him; however, the accused had not issued the cheque and the bill. It is necessary to examine the documents by a handwriting expert. Therefore, a prayer was made to send the documents for ascertaining the expert opinion. 4. No reply was filed and the application was opposed orally by submitting that the application was filed belatedly at the stage of addressing arguments. 5. The learned Trial Court held that the accused had not disputed his signatures on the cheque. He admitted that he had given the cheque as a security to the complainant. There is a presumption that the cheque was issued in discharge of legal liability and there is no requirement that the cheque should be filled by the drawer himself. The accused is liable even if the cheque is filled by some other person. The proof that the cheque was filled up by some other person will not serve any purpose. Hence, the application was dismissed with costs. 6. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed under Section 482 of Cr.P.C. asserting that the order dated 3.3.2023 passed by the learned Trial Court is against the spirit of Section 243 Cr.P.C. and Section 73 of Indian Evidence Act. Hence, the application was dismissed with costs. 6. Being aggrieved from the order passed by the learned Trial Court, the present petition has been filed under Section 482 of Cr.P.C. asserting that the order dated 3.3.2023 passed by the learned Trial Court is against the spirit of Section 243 Cr.P.C. and Section 73 of Indian Evidence Act. Learned Trial Court erred in holding that the application was filed at a belated stage because the occasion for filing the application arose after the examination of the witnesses. The judgment relied upon by the learned Trial Court in Bir Singh Mukesh 2019 (4) SCC 197 does not apply to the present case. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 7. The petition is opposed by filing a reply making a preliminary submission regarding the petition having been filed to delay the proceedings. It was asserted that the application was filed after the recording of the statement and the closure of the defence evidence. The accused never disputed the signatures on the cheque in question. He also did not deny the business transactions with the complainant, consequent upon which, he issued certain bills to him. When the signatures are not disputed, a presumption arises that a cheque was issued in the discharge of the criminal liability. Even if it is proved that the cheque was not filled by the accused, it will not make any difference to liability of the accused to indemnify the complainant. The order passed by the learned JMFC, Thunag is based upon the correct interpretation of law and as per the various pronouncements of the Hon’ble Supreme Court and the High Courts. Therefore, it was prayed that the present petition be dismissed. 8. I have heard Mr. Rajiv Rai, learned Counsel for the petitioner/accused and Mr. Sunny Rawat, learned counsel for the respondent/complainant. 9. Mr. Rajiv Rai, learned counsel for the petitioner submitted that the learned Trial Court erred in dismissing the application. The accused has a valuable right to lead the defence evidence which cannot be denied to him. The sending of the cheque for comparison is part of such right. He has relied upon the judgment of the Hon’ble Supreme Court in Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258 and V.S. Geetha v. M. Aliyarkunju, 1996 SCC OnLine Ker 152. The sending of the cheque for comparison is part of such right. He has relied upon the judgment of the Hon’ble Supreme Court in Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258 and V.S. Geetha v. M. Aliyarkunju, 1996 SCC OnLine Ker 152. He further submitted that the bar under Section 153 of Indian Evidence Act will not apply to the present case, as the case is covered under the exception as well as the illustration appended to the Section. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 10. Mr. Sunny Rawat, learned counsel for the respondent-complainant supported the order passed by the learned Trial Court and submitted that no interference is required with the same. He submitted that the accused has not disputed his signatures on the cheque and sending the cheque to the handwriting expert would serve no useful purpose because when the signatures are admitted, it is immaterial as to who has filled the body of the cheque. He relied upon the judgments of the Hon’ble Supreme Court in Bir Singh Vs. Mukesh Kumar Cr. Appeal Nos. 230-231 of 2019, decided on 6.2.2019, Sudhir Kumar vs. Padam, Cr. M-M No. 9327 of 2022, decided on 14.3.2022 and this Court in Tajinder Singh Vs. Anil Nayyar 2017 (Sup) Him. L.R. 2625 in support of his submission. 11. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 12. It was suggested to the complainant in his cross-examination that he had filled the amount and date himself and these were not filled by the accused-Tilak Raj. This suggestion was denied by the complainant. It was also suggested that he had taken a blank cheque as security, which was filled by him. This suggestion was also denied by the complainant. The accused stated on oath that the complainant had taken a security cheque from him because the complainant was not providing the apple till the delivery of the security cheque. 13. Therefore, the learned Trial Court was fully justified in holding that the signatures on the cheque were not disputed by the accused. 14. In Prabodh Kumar Tiwari (supra), the accused admitted that he had signed and handed over the cheque to the complainant. 13. Therefore, the learned Trial Court was fully justified in holding that the signatures on the cheque were not disputed by the accused. 14. In Prabodh Kumar Tiwari (supra), the accused admitted that he had signed and handed over the cheque to the complainant. He subsequently sought the opinion of the Handwriting Expert to determine whether the details in the cheque were filled in his handwriting or not. This application was allowed by the High Court. The Hon’ble Supreme Court reversed this judgment and held that once the accused handed over the cheque to the complainant, the other person had a right to fill in the details. Hence, the fact that details were not filled by the drawer but by some other person is immaterial. It was observed:- 16. 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. 17. In Anss Rajashekar v. Augustus Jeba Ananth 2020 (15) SCC 348 , a two-judge Bench of this Court, of which one of us (D.Y. Chandrachud J.) was a part, reiterated the decision of the three Bench of this Court in Rangappa v. Sri Mohan (2010) 11 SCC 441 on the presumption under Section 139 of the NI Act. The court held: 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. This Court held thus: “28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities. This Court held thus: “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.” (emphasis supplied) 18. 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. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a handwriting expert. Even if the details in the cheque have not been filled up by the drawer but by another person, this is not relevant to the defence whether the cheque was issued towards payment of a debt or in the discharge of a liability. 15. In the present case, the accused has taken a similar defence that he had handed over a signed blank cheque to the complainant. He sought an examination of the cheque to establish that he had not filled in the details. The Hon’ble Supreme Court has held that even if it is established that the cheque was filled by some other person that will not make any difference to the liability of the accused. Hence, no useful purpose would be served by allowing the application and sending the cheque to the expert for comparison of the Handwriting on the body of the cheque. 16. In Kalyani Bhaskar (supra) the accused had disputed his signatures, which is not the case here. Thus, this judgment will not apply to the present case. 17. Hence, no useful purpose would be served by allowing the application and sending the cheque to the expert for comparison of the Handwriting on the body of the cheque. 16. In Kalyani Bhaskar (supra) the accused had disputed his signatures, which is not the case here. Thus, this judgment will not apply to the present case. 17. It was submitted that the judgment of Prabodh Kumar Tiwari (supra) will not apply to the present case as the complainant had not stated in that case that the cheque was filled by the accused and this is a distinguishing feature in the present case. This submission is not acceptable. Once the Hon’ble Supreme Court has categorically held that it is immaterial in whose handwriting the body of the cheque is filled when the signatures are admitted, it does not make any difference whether the complainant says that it was filled by him, some other person or by the accused, because the only material fact would be the signatures of the accused found on the cheque, which is not disputed in the present case. Therefore, the judgment of Prabodh Kumar Tiwari (supra) squarely applies to the facts of the present case. 18. It was submitted that the comparison of the signature would falsify the statement of the complainant that the cheque was filled by the accused. No evidence is admissible to contradict the statement of a witness. Section 153 of the Indian Evidence Act provides that when a witness has been asked and answered any question, which is relevant to inquiry only in so far as it tends to shake his credit by injuring his character, no evidence can be led to contradict him. Thus, it is apparent that the evidence cannot be led to contradict the witness. The submission that the case is covered by Exception-I and Exception-II is not acceptable, because Exception-I deals with the previous conviction which is not the case here and Exception-II deals with impartiality which again is not the case here. 19. Thus, it is apparent that the evidence cannot be led to contradict the witness. The submission that the case is covered by Exception-I and Exception-II is not acceptable, because Exception-I deals with the previous conviction which is not the case here and Exception-II deals with impartiality which again is not the case here. 19. Reliance was also placed upon the judgment of the Hon’ble Supreme Court in Vijayan v. State, (1999) 4 SCC 36 : 1999 SCC (Cri) 505; however, in that case, it was held that the evidence can be led to falsify the testimony of a person that he was present at a particular time because it does not aim to shake the credit of the witness by injuring his character but takes away the effect of his whole testimony. It was observed: 18. Section 153 of the Evidence Act, 1872 is titled as “exclusion of evidence to contradict answers to questions testing veracity”. The main body of the section reads thus: “153. When a witness has been asked and has answered any question which is relevant to the enquiry only insofar as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.” 19. Section 153 is based on the decision rendered by Pollock, C.B. in Attorney General v. Hitchcock [(1847) 1 Exch 91: 154 ER 38] in which the learned Judge observed that “a witness may be contradicted as to anything he denies having said provided it be connected with the issue as a matter capable of being distinctly given in evidence, or it must be so far connected with it as to be a matter which, if answered in a particular way, would contradict a part of the witness's testimony, and if it is neither one nor the other of these, it is collateral to though in some sense it may be considered as connected with, the subject of enquiry”. The rule limiting the right to call evidence to contradict a witness on collateral issues excludes all evidence of facts which are incapable of affording any reasonable presumption or inference as to the principal matter in dispute. 20. But the above rule of prohibition has exceptions which can be discerned from the section itself. The rule limiting the right to call evidence to contradict a witness on collateral issues excludes all evidence of facts which are incapable of affording any reasonable presumption or inference as to the principal matter in dispute. 20. But the above rule of prohibition has exceptions which can be discerned from the section itself. Among the four illustrations enumerated in the section, one of them [Illustration (c)] is relevant in this context which is extracted below: “A affirms that on a certain day, he saw B at Lahore. A is asked whether he was not on that day at Calcutta. He denies it. Evidence is offered to show that A was on that day at Calcutta. The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.” 21. Thus when the issue is whether PW 3 Poosappan was present at the scene of occurrence, evidence can be offered to show that at the very time, he was at a different place. Evidence of that type is not aimed at shaking the credit of the witness by injuring his character. It affects the veracity of the testimony irrespective of his character. 20. In the present case, the only impact of the report of the handwriting expert would be to show that the complainant is lying and that the cheque was filled by the accused. It would not serve any other purpose. The evidence to contradict a witness cannot be led in view of Section 153 of the Indian Evidence Act. Therefore, the submission that the reception of the evidence is not barred under Section 153 of the Indian Evidence Act cannot be accepted. 21. It was submitted that the accused has a valuable right to defend himself and denial of this right means the denial of the opportunity of hearing. There can be no dispute that the accused has a valuable right to produce the evidence to defend himself, however, the evidence has to be relevant. Any irrelevant evidence cannot be adduced on the premise that the accused has a right to lead the evidence. There can be no dispute that the accused has a valuable right to produce the evidence to defend himself, however, the evidence has to be relevant. Any irrelevant evidence cannot be adduced on the premise that the accused has a right to lead the evidence. Once the Hon’ble Supreme Court holds that the filling of the body of the cheque is irrelevant after the admission of the signatures, no useful purpose would be served by comparing the handwriting as this will be an exercise in futility which will lead to nowhere. Therefore, such evidence cannot be adduced on the premise that the accused has a valuable right to defend himself. 22. No other point was urged. 23. In view of the above, the present petition fails and the same is dismissed. 24. The parties through their respective counsel are directed to appear before the learned Trial Court on 28.2.2024. 25. The observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.