Uttarakhand High Court
Virendra Singh vs Gurvinder Singh on 26 September, 2019
Author: N.S. Dhanik
Bench: N.S. Dhanik
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Miscellaneous Application No. 663 of 2019
(Under Section 482 CrPC)
Virendra Singh ...... Applicant
Versus
Gurvinder Singh .......Respondent
Mr. T.A. Khan, Senior Advocate, assisted by Mr. Aditya Kumar
Arya, Advocate for the applicant.
Mr. Vikas Kumar Guglani, Advocate, for the respondent.
Judgment reserved on : 03.9.2019
Judgment delivered on : 26.9.2019
Hon'ble N.S. Dhanik, J.
The background facts of the case are that the respondent filed a complaint under Section 138 of the Negotiable Instruments Act with the averments that he had given a friendly loan of rupees seven lakhs to the accused applicant and a cheque no. "010357" dated 28.7.2015 drawn at Allahabad Bank was issued by the accused applicant towards the repayment of the said friendly loan. When the complainant presented the said cheque, it was dishonourned and returned unpaid for want of sufficient funds and he received the information to this effect on 4.8.2015. The complainant, through his Advocate, gave a legal notice to the accused applicant on 17.8.2015 calling him to pay the cheque amount. However, the accused applicant did not return the money. Ultimately, he instituted the Criminal Complaint Case No. 1343/2015 against the accused applicant.
Complainant got himself examined as PW1 and produced his witness Jagjeevan Singh who was got examined as PW2. In defence, the accused applicant got examined one Daljeet Singh as DW1.
2Thereafter the accused applicant moved an application for getting the cheque verified through forensic science laboratory. Complainant filed objections to the said application. Thereafter the Court below vide order dated 26.4.2019 rejected the application of the accused applicant. This order has been assailed by the accused applicant by way of filing this Criminal Miscellaneous Application under Section 482 CrPC.
The case of the accused applicant is that he had issued the cheque, in question, to Jagjeevan Singh (PW2) in November, 2013 as a security as he was having business relationship with him and at the time of delivering the said cheque, he had put only his signature on that cheque and no other column of the cheque was filled up and the complainant/respondent, in connivance with Jagjeevan Singh, filled up other columns of that cheque and presented it before the bank on 3.8.2015. The said cheque was returned unpaid with the endorsement "insufficient funds", which led to filing of the present complaint.
Learned Senior Counsel for the applicant argued that the particulars of the cheque, in question, were filled up subsequently with another ink by someone else, must be verified through the forensic science laboratory and the Court below erred in rejecting the prayer to this effect of the applicant. Learned Senior Counsel relied on a judgment of Hon'ble Apex Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258, as well as on a judgment of Delhi High Court in N. Ramchandra v. State of Delhi, 2015 SCC OnLine Del 8264. In these cases, the signature on the cheque itself was disputed and, therefore, the said verdicts are not applicable in 3 the present case. Relaince has also been placed on another judicial authority of Hon'ble Supreme Court in T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633, but the ratio held in this case is also not attracted in the present case.
Learned Counsel for the respondent contended that it is the admitted case of the applicant that the cheque, in question, bears his signature and, therefore, it becomes irrelevant and immaterial as to who filled up the other particulars. Learned Counsel relied on the judgment of this Court rendered on 22.8.2017 in Criminal Miscellaneous Application (C-
482) No. 1058 of 2017. In this case also, the accused applicant had not disputed his signature on the cheque. He was disputing the handwriting in filling up the other particulars of the cheque. Under these facts and circumstances, this Court observed that the trial court did not commit any mistake in rejecting the application of the applicant for comparison of handwriting on the cheque.
Learned Counsel for the respondent also relied on a judgment of Delhi High Court in Rambir Sharma v. M/s HBN Housing Finance Ltd., 2017 SCC OnLine Del 11016, wherein it was observed that there was no requirement for obtaining the opinion of the handwriting expert as the petitioner has clearly admitted having signed on the blank cheque.
Having heard learned Counsel for the parties and on perusal of the materials on record including the impugned order, I find no substance in the contention of learned Senior Counsel for the applicant that except the signature, particulars of the 4 cheque were filled up by someone else and therefore the provision contained under Section 138 of the N.I. Act is not attracted in this case. The applicant admits his signature on the cheque, in question. When the signature is admitted by the accused drawer, he cannot dispute the contents of the cheque in view of the provisions of Section 20 of Negotiable Instruments Act. The Court below has also relied upon Section 20 of the Act, which reads as under:
"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 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."
As regards the contention of learned Senior Counsel that the cheque, in question, was not given to the complainant respondent, but it was given to Jagjeevan Singh (PW2), this contention has no leg to stand in view of the provisions of Section 139 of the Negotiable Instruments Act. Section 139 of the Act mandates that unless contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred in Section 138 of the Act.
5It is also settled law that if any cheque duly signed by the drawer is given to a payee, the payee may fill up the other particulars and this in itself would not invalidate the cheque. The onus of proving that the cheque issued was not in discharge of any debt or other liability is on the accused drawer of the cheque. Moreover, Jagjeevan Singh (PW2), the person to whom the accused applicant alleges to have given the cheque, has himself deposed in favour of the complainant/respondent.
The Hon'ble Apex Court in a recent judgment in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, has observed that it is immaterial that the cheuqe is filled up by any person other than the drawer provided it is duly signed by the drawer. The same would not invalidate the cheque and shall attract the presumption under Section 139 of the Negotiable Instruments Act and if the cheque is otherwise valid, the penal provisions of Section 138 would be attracted However, the said presumption is rebuttable and can be rebutted by the accused by proving the contrary by adducing cogent and reliable evidence that there was no debt or liability.
For the reasons recorded above, I find no infirmity in the impugned order and the same warrants no interference by this Court. Consequently, this C482 application is hereby dismissed. Interim order, if any, stands vacated. The accused applicant would be at liberty to adduce evidence in rebuttal during trial before the Court below.
(N.S. Dhanik, J.) Prabodh 6