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Madhya Pradesh High Court · body

2025 DIGILAW 207 (MP)

Vikrambhai Patel v. Praveen Group

2025-03-21

DINESH KUMAR PALIWAL

body2025
ORDER 1. The present petition has been filed to quash orders dated 11.4.2023, 6.12.2024 and 19.12.2024 passed by learned Judicial Magistrate, First Class, Jabalpur in SCNIA Case No. 600/2023 (Praveen Group of Constructions through Proprietor Praveen Kumar Patel v. Vikram Bhai Vallabh Bhai Patel) whereby cognizance has been taken against the petitioner herein on 11.4.2023 for commission of offence under section 138 of the Negotiable Instruments Act and order dated 6.12.2024 whereby an application under section 45 and 73 of the Evidence Act filed by the petitioner/accused has been dismissed. As the petitioner has sought time till March, 2025 to produce defence evidence as accused is in some foreign country, by the order dated 19.12.2024, the trial Court has directed accused to produce his defence evidence otherwise his defence will be closed. 2. The aforesaid orders have not been challenged before the Court of Session by filing revision but have been directly challenged before this Court and petitioner has prayed to set aside the aforesaid orders. 3. The brief facts of the case are that the petitioner is facing trial in SCNIA Case No.600/2023 (Praveen Group of Constructions through Proprietor Praveen Kumar Patel v. Vikram Bhai Vallabh Bhai Patel) for commission of offence under section 138 of the Negotiable Instruments Act (hereinafter referred to as "N.I. Act".) before JMFC, Jabalpur. It is alleged that petitioner accused had issued a cheque dated 28.11.2022 of HDFC, City Road, Ahmedabad for a sum of Rs.27,25,000/- in favour of the respondent/complainant. When cheque was presented by the complainant in the Bank for encashment, same stood dishonoured on 13.1.2023 with an endorsement of insufficient fund. A complaint was filed by the respondent-complainant under section 200 of Cr.P.C. before the learned JMFC alleging that the petitioner/accused has committed an offence under section 138 of the N.I. Act. 4. Learned counsel for the petitioner is heard at length. 5. The petitioner has challenged three orders by this petition. First order is dated 11.4.2023 whereby cognizance has been taken against the petitioner for commission of offence under section 138 of the N.I. Act. It is worth mentioning that the petitioner had earlier filed an application under section 482 of Cr.P.C. challenging the order of taking cognizance but the said petition was dismissed as withdrawn and not pressed vide order dated 13.12.2024 passed in M.Cr.C. No.53514/2024 (Vikram Bhai Patel v. Praveen Group of Construction). 6. It is worth mentioning that the petitioner had earlier filed an application under section 482 of Cr.P.C. challenging the order of taking cognizance but the said petition was dismissed as withdrawn and not pressed vide order dated 13.12.2024 passed in M.Cr.C. No.53514/2024 (Vikram Bhai Patel v. Praveen Group of Construction). 6. Learned counsel for the petitioner placing reliance on the judgment of apex Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh and others, (1975) 3 SCC 706 has argued that the High Court in changed circumstances can entertain a petition under section 482 of Cr.P.C./561A of old Cr.P.C. The aforesaid case law is based on provisions of section 561A of Cr.P.C., 1898 in which it is held that the facts and circumstances obtaining at the time of subsequent application if are clearly different from what they were in the earlier application, petition can be filed. He has also placed reliance on the decision of High Court of Calcutta in Indmark Finance and Investment Co. Pvt. Ltd. and another v. The Learned Metropolitan Magistrate 28th Court and others, 1992 (supple.) MWN (Cr.) Cal. in which point of territorial jurisdiction of the Court was considered. 7. The contention of learned counsel for the petitioner is not worth acceptance as in the first petition which was dismissed on 13.12.2024, the point with regard to cognizance was raised and that petition was dismissed as withdrawn. Therefore, no benefit can be given to him on the basis of case law of Superintendent and Remembrancer of Legal Affairs (supra), relied on as in that case petition was filed on different grounds which were clearly different what they were at the time of earlier application. 8. The Hon'ble apex Court in the case of Bhisham Lal Verma v. State of Uttar Pradesh and another, 2023 LiveLaw (SC) 935 observed that even though there is no absolute bar on a second petition under section 482, such a petition would not be maintainable when the grounds for relief were available to the parties at the first instance itself and held as under :-- "11. We are in complete agreement with these observations of the Madras High Court. We are in complete agreement with these observations of the Madras High Court. Though it is clear that there can be no blanket rule that a second petition under section 482 Cr.P.C. would not lie in any situation and it would depend upon the facts and circumstances of the individual case, it is not open to a person aggrieved to raise one plea after the other, by invoking the jurisdiction of the High Court under section 482 Cr.P.C., though all such pleas were very much available even at the first instance. Permitting the filing of successive petitions under section 482 Cr.P.C. ignoring this principle would enable an ingenious accused to effectively stall the proceedings against him to suit his own interest and convenience, by filing one petition after another under section 482 Cr.P.C., irrespective of when the cause therefor arose. Such abuse of process cannot be permitted." 9. In the case in hand the order of taking cognizance has already been challenged and petition in this regard has already been dismissed, by this Court as withdrawn. Now it is not open to the petitioner to go on to challenge the same order about which petition has already been refused. In the case of Bhisham Lal Verma (supra), the case of Superintendent and Remembrancer of Legal Affairs (supra), was also considered. 10. In Vinod Kumar, IAS v. Union of India and others, 2021 SCC OnLine SC 559, a three-Judge Bench of the Apex Court observed that dismissal of an earlier petition under section 482 Cr.P.C. would not bar filing of subsequent petition thereunder, in case the facts so justify. It is upheld that if justified a second petition under section 482 of Cr.P.C. shall be maintainable but a man is required to honestly come before the Court raising all the pleas available to him at the point of time and he is not supposed to approach the Court with instalment pleas. 11. As in the case in hand the order of taking cognizance has already been challenged and petition in this regard has already been dismissed, now he cannot be permitted to challenge the same in second petition wherein other orders passed by the Trial Court are challenged therefore the contention of learned counsel in this regard being not worth acceptance is repelled. 12. 12. The another order which has been challenged by the petitioner is the order dated 6.12.2024 whereby petitioner's application for examination of the body of cheque by handwriting expert has been dismissed. 13. Counsel for the petitioner is heard. 14. From the record it is revealed that at the stage of defence evidence, petitioner accused moved an application under section 45 and 73 of the Evidence Act and submitted that applicant/petitioner had submitted an application before Police Barela about misuse of the cheque. The complaint was made on 4.8.2023, therefore it was prayed that petitioner be permitted to examine the writing in the body of cheque from handwriting expert as the same were not filled by him and the same is required to be compared by the handwriting of the complainant. It is the defence of the petitioner-accused that he had made a complaint to the Police on 4.8.2023 about theft of cheque. On perusal of the complaint (Annexure A/9), it is revealed that in it, it is stated that cheques were blank but cheques were having his signatures and cheques were stolen from his home but in Feburary, 2023 when he received legal notice from the counsel of the Praveen Group about dishonour of the cheque, he made the complaint. From the recital of the complaint itself, it is apparent that cheque was having the signature of the petitioner. Thus it is undisputed that cheque bears petitioner's signature. The aforesaid application filed by the petitioner was dismissed by the learned JMFC holding that he has not moved any handwriting by which he wanted to compare the handwriting of the body of the cheque and no reason has been mentioned as to why he wanted to get the cheque examined through handwriting expert and dismissed the application. 15. Learned trial Court has held that case is fixed for defence evidence and applicant has admitted his signatures on the cheque and in his statement recorded under section 313 of Cr.P.C. he has admitted that he had given aforesaid Ex.P-1 cheque to the complainant and it bears his signatures and same is apparent from his answer given against question No.10 of the questionnaire prepared under section 313 of Cr.P.C. He has also admitted that legal notice was sent to him and he had received the same. 16. 16. Learned counsel for the petitioner has placed reliance on the case of T. Nagappa v. Y.R. Muralidhar (2008) 5 SCC 633 and submitted that accused has a right to fair trial and also has a right to defend himself and the right to defend oneself is recognized by section 243 sub clause (2) of Cr.P.C. Therefore, the learned JMFC was not justified in dismissing his application for examination of the body of the cheque by handwriting expert. 17. It is also contended by learned counsel for the petitioner that by the impugned order passed by the Trial Court is contrary to the aforesaid decision of Hon'ble the apex Court and accused/petitioner cannot be denied of the examination of the handwriting expert, therefore, cheque in question ought to have been sent for examination before the handwriting expert. Denial of the same by the trial Court is deprivation of the accused from adducing his defence. Therefore, it has been prayed that orders of the Trial Court being perverse, illegal and arbitrary be set-aside and the petitioner/accused be permitted to examine the handwriting expert in respect of the writing on the body of cheque in question. 18. I have heard learned counsel for the petitioner and examined the orders passed by learned JMFC. 19. Learned JMFC has given a clear-cut finding that the present petitioner has not challenged his signature on the disputed cheque and has also not placed any admitted writing on the basis of which petitioner wanted to compare the handwriting in the body of the cheque. Petitioner/accused has not denied his signature on the cheque in question. It is undisputed that the cheque bears his signature and it was issued by him. 20. In this case, it is not the case of the petitioner/accused that he either signed the cheque or parted with it under any threat or coercion. Nor it is the case of petitioner/accused that the unfilled signed cheque had been stolen. It is admitted that the cueque was issued by the petitioner and it bears his signature. In the absence of the evidence of exercise of undue influence or coercion or denial of his own signature on cheque, no useful purpose will be served by getting the body of the cheque examined by the hand-writing expert. 21. It is admitted that the cueque was issued by the petitioner and it bears his signature. In the absence of the evidence of exercise of undue influence or coercion or denial of his own signature on cheque, no useful purpose will be served by getting the body of the cheque examined by the hand-writing expert. 21. In the case of T. Nagappa and Kalyani Bhaskar (supra), and Kalyani Bhaskar v. M.S. Sampoornam, 2007(2) SCC 258 an application under section 243(2) of Cr.P.C. for referring the cheque in question for examination by the Director, Forensic Science Laboratory for determining the age of his signature, contending that respondent had obtained his sign on the cheque from him in the year, 1999 as a security of a hand loan of Rs.3,00,,000/- which had been paid back but instead of returning of cheque, the same has been misused by entering a huge amount, which he did not owe to the appellant. Application was dismissed. Hon'ble the apex Court was of the view that when a contention has been raised that complainant has misused the cheque, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it and the accused has right to fair trial. 22. In the case in hand, the amount of cheque is only Rs.27,25,000/- and it is admitted that cheque was issued by the petitioner/accused and it bears his signature. In the case of T. Nagappa (supra), and Kalyani Bhaskar (supra), the defence was that said cheque was not returned on the same day and time when the said cheque was signed as " T. Nagappa" on the front page as well as on the reverse or other words that issue was about the age of the writing on the cheque with the signature of the drawer of the cheque. As the judgment of the Supreme Court in the case of M.S. Kalyani Bhaskar (supra), is concerned, in that case, question was whether the cheque in question bears the signature of the accused or not? signature of the cheque were clearly denied and request was made to send cheque for expert opinion, which was denied by the trial Court and that order was upheld by the revisional Court and the High Court also. signature of the cheque were clearly denied and request was made to send cheque for expert opinion, which was denied by the trial Court and that order was upheld by the revisional Court and the High Court also. In these circumstances the appeal preferred by the accused was allowed by Hon'ble Supreme Court and it was observed in Para 11 as under : "The issue now almost stands concluded by a decision of this Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) [ (2007) 2 SCC 258 ] (in which one of us, L.S. Panta, J., was a member) wherein it was held : (SCC p.262, Para 12)" 12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the Courts should be jealous in seeing that there is no breach of them." 23. Hon'ble Supreme Court in the matter of T.Nagappa (supra), while discussing the scope of section 20 of Negotiable Instrument Act has held that by reason, a right had been created in the holder of cheque. Prima facie, holder thereof is authorized to complete and incomplete Negotiable instrument Act. 24. Hon'ble Supreme Court in the matter of T.Nagappa (supra), while discussing the scope of section 20 of Negotiable Instrument Act has held that by reason, a right had been created in the holder of cheque. Prima facie, holder thereof is authorized to complete and incomplete Negotiable instrument Act. 24. A coordinate Bench of this Court in the case of Narendra Dhakad v. Anand Kumar ILR 2008 (2) MP 1309 held that where applicant has not denied his signatures on the cheque and has not disputed that cheque was from his account other columns may be filled by anyone on the instructions of the applicant himself. No useful purpose would be served by getting cheque examined by handwriting expert. In the case of Sanjay v. Rajeev- 2007(2) MPHT 182 request was made for calling the bank record and to get the cheque examined by the hand-writing expert but prayer was found to be just delaying tactics and the petition was dismissed observing that the signatures of the cheque are admitted and it was also observed that petition was filed in the garb of provisions of section 482 of Cr.P.C. was in fact a second revision petition. 25. At this juncture it would be worthwhile to mention the provisions of section 20 of the N.I. Act which runs as under :-- "20. Inchoate stamped instruments. Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 1[India], and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder." 26. In case of T. Nagappa (supra) while discussing the scope of section 20 of N.I.Act, it has been held that by reason of this provision a right has been created in the holder of the cheque, the holder is authorized to complete an incomplete negotiable instrument. In the case of Sampelly Satyanarayana Rao versus Indian Renewable Energy Development Agency Development Agency Limited 2016(4) RCR (Civil) 487, it has been held that in case of a loan taken by the accused, if a post dated cheque is issued towards repayment but described as a security cheque, the dishonor of the cheque would make the accused liable once the issuance of the cheque and signature thereon were admitted. In Smt. Sunita Dubey vs Hukum Singh Ahirwar 2015 (1) MPLJ 574, it was held that where cheques were filled by complainant for which relief of expert opinion was sought by accused even if it is assumed that blank cheques were given and individual is authorized to complete the inchoate instrument given to him by filling up the blanks, as a blank cheque could be filled up by the 'Holder thereof, which will be a valid instrument in the eye of Law. Even if for the sake of argument, it is assumed that body of the cheque was not filled by the petitioner/accused and that is being filled by the complainant yet the statutory presumption cannot be obliterated. 27. In the case of Birsingh v.. Mukeshkumar - 2019 (4) SCC 197 , Hon'ble Supreme Court held that "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 debt." The Hon'ble Supreme Court in Birsingh (supra), held as under :-- "37. 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 19 of 31 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. 38. 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. 39. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. 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. (Emphasis supplied) 28. In the case of Oriental Bank of Commerce v. Pramod Kumar Tiwari (2022) Livelaw (SC) 714, Hon'ble the apex Court has held as under : "15. 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. 16. In Anss Rajashekar v. Augustus Jeba Ananth, 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-Judge Bench of this Court in Rangappa v. Sri Mohan on the presumption under section 139 of the NI Act. The Court held : 12. 16. In Anss Rajashekar v. Augustus Jeba Ananth, 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-Judge Bench of this Court in Rangappa v. Sri Mohan 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. 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 æpreponderance 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. 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 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. (Emphasis supplied) 29. 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. (Emphasis supplied) 29. Considering the fact that cheque was admittedly issued by the petitioner/accused and it bears his signature, this Court is of the view that no useful purpose would be served by sending the cheque for hand-writing expert to examine the body of cheque, because once that cheque was issued, a liability is imposed upon the petitioner/accused in terms of section 118 and section 139 of N.I. Act. In this case, the amount involved in cheque is only Rs.27,25,000/-, therefore, no useful purpose would be served by sending the cheque for handwriting expert, therefore I am of the view that learned JMFC has not committed any error in dismissing the application. 30. As far as challenge made to order dated 19.12.2024 is concerned, by the said order the learned Trial Court has stated that if defendant/accused failed to produce its evidence, his evidence may be closed and case was fixed for 8.1.2025. It is not clear whether his evidence has been closed or not, therefore when evidence has not been closed, the order dated 6.12.2024 cannot be quashed as it has not closed the petitioner's right to adduce his defence evidence. Thus, challenge to the aforesaid order is premature. Therefore, I am of the view that the impugned orders passed by the learned JMFC do not suffer from any illegality, perversity or impropriety resulting in failure of justice by non-examination of the hand-writing expert in the facts of the instant case. 31. Learned counsel for the petitioner has failed to refer any provision in law as per which the hand-writing on cheque must necessarily be that of the signatory or to any judgment that once the signatures on cheque are admitted, filling of the cheque in a different hand-writing itself would be a sufficient ground to rule against a cheque having been issued in due course. The evidence of the parties has to be seen in the light of the defence taken by the petitioner/accused, the plea raised in the application is not likely to advance any apparent interest of justice and is an evident attempt to delay the culmination of the proceedings as the proceedings have already got delayed for more than 02 years and the case is pending since 2023. 32. In view of the above, the instant petition is without any merit and the same is accordingly dismissed. No benefit can be given to the petitioner/accused on the basis of T. Nagappa (supra) case.