Madhya Pradesh High Court
Rajendra Shrivas vs Santosh Gupta on 22 September, 2022
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 22nd OF SEPTEMBER, 2022
MISC. CRIMINAL CASE No. 4049 of 2022
BETWEEN:-
RAJENDRA SHRIVAS, S/O SHRI RAMNARAYAN
SHRIVAS, AGED ABOUT 55 YEARS, R/O-
VILLAGE CHARGAWAN, POST SHAHPURA,
DISTRICT-DINDORI (MADHYA PRADESH).
.....PETITIONER
(BY SHRI SIDDHARTH SHARMA, ADVOCATE)
AND
SANTOSH GUPTA S/O HIRALAL GUPTA
OCCUPATION: NIL, R/O- 435, EAST NIWADGANJ,
DISTRICT-JABALPUR (MADHYA PRADESH).
.....RESPONDENTS
(BY SHRI K.K. VERMA, PANEL LAWYER )
This application coming on for admission this day, the court passed the
following:
ORDER
The present petition has been filed to quash the order dated 27.10.2021 passed by learned Judicial Magistrate, First Class, Jabalpur in SCNIA No. 4314/2014 Santosh Gupta Vs. Rajendra Shrivas whereby an application under Sections 45 and 73 of the Evidence Act filed by the petitioner/accused has been dismissed. Against the impugned order, a revision was preferred by the petitioner/accused before the Sessions Judge, Jabalpur. Learned Additional Sessions Judge/Special Judge, Electricity Act, 2003 No.9, Jabalpur by order dated 08.12.2021 passed in Cr.R. No. 272/2021 Rajendra Shrivas Vs. Santosh Gupta has affirmed the order passed by learned JMFC and has dismissed the Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM 2 revision application.
2. The brief facts of the case are that petitioner is facing trial in SC NIA No. 4314/2014 Santosh Gupta Vs. Rajendra Shirvas for commission of offence under Section 138 of Negotiable Instrument Act (hereinafter referred to as N.I. Act.) before JMFC, Jabalpur. It is alleged that petitioner/accused had issued a cheque dated 10.02.2014 in favour of the respondent/complainant for a sum of Rs. 3,00,000/-, when cheque was presented by him in the bank for encashment same stand dishonored on 13.02.2014. A complaint was filed by the respondent/complainant under Section 200 of Cr.P.C. before learned JMFC alleging that the petitioner/accused has committed an offence under Section 138 of the Negotiable Instrument Act.
3. At the stage of defence evidence, petitioner/accused moved an application under Sections 45 and 73 of the Evidence Act and submitted that a blank cheque signed by him was given for security purposes but name and amount written in words/digit and the dates were not filled by him, hence, same is required to be compered by the handwriting of the complainant. It is the defence of the petitioner/accused that he had given blank cheque signed by him. Cheque was given only for the security purpose. Therefore, he prayed that order be passed for examination of the body of cheque by handwriting expert but he did not deny his signature on the cheque. It is undisputed that the cheque was given by the petitioner and it bears his signature. The application was dismissed by learned JMFC by the order dated 27.10.2021 on the ground that matter is pending since 2014 and case is being fixed for defence evidence since 22.02.2019. Applicant has admitted his signature on the cheque and has further admitted that he had given it to the complainant. The only defence is that it was given for security purposes. Application has been filed only to protract the trial.
Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM 3There is no need to examine the body of the cheque as it has been filed just to delay the culmination of the old pending case. The order dated 27.10.2021 passed by learned JMFC was challenged before the Court of Session by filing a criminal revision but that was also dismissed holding that reasons recorded by learned JMFC are just and plausible and no impropriety incorrectness and illegality is found in the order passed by the learned JMFC. Hence, revision application was also dismissed.
4. Learned counsel for the applicant placing reliance on the case of Kalyani Bhaskar Vs. M.S. Sampoornam 2007(2) SCC 258 and T. Nagappa Vs. Y.R. Murlidhar, 2008 (4) MPLJ 455 (SC), 2008 (5) SCC 633 submitted that accused has right to fair trial and has also a right to defend himself and the right to defend oneself is recognized by Section 243 (2) of the Cr.P.C. Therefore, learned Courts below were not justified in dismissing his application for examination of the body of the cheque by handwriting expert.
5. It is also contended by learned counsel for the petitioner that by the impugned order passed by the Courts below is contrary to the aforesaid decision of Hon'ble the Apex Court. He further contended that 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 Courts below is deprivation of the accused from adducing his defence. Therefore, it has been prayed that orders of the Courts below 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.
6. I have heard learned counsel for the petitioner and examined the orders Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM 4 passed by learned Courts below.
7. Both the Courts below have given a clear-cut finding that the present petitioner has not challenged his signature on the disputed cheque. He has stated that cheque was given for security purpose. As 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.
8. 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.
9. In the case of T. Nagappa and Kalyani Bhaskar (supra) 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.
10. In the case in hand, the amount of cheque is only Rs. 3,00,000/- and Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM 5 it is admitted that cheque was issued by the petitioner/accused and it bears his signature. In the case of T. Nagappa and Kalyani Bhaskar 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 revers 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 revisiional 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 th e 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 Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM 6 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."
11. Hon'ble Supreme Court in the matter of T. Nagappa Vs. Y.R. Murlidhar (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. Primafacie, holder thereof is authorized to complete and incomplete Negotiable instrument Act.
12. A coordinate bench of this Court in the case of Narendra Dhakad vs. 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 vs. 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.
13. 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 Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM 7 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."
14. In case of T. Nagappa Versus Y. R. Muralidhar, 2008(3) R.C.R (Criminal) 926, 2008(5) SCC 633 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 Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM 8 was not filled by the petitioner/accused and that is being filled by the complainant yet the statutory presumption cannot be obliterated.
1 5 . In the case of Birsingh Vs. 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 Bir Singh's case (supra), held as under:-
"3 7 . 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 t h e 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 Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM 9 presumption under section 139 of t h e 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)
16. In the case of Oriental Bank of Commerce Vs. 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. 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:
2 8 . 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 Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM 10 that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of Âœpreponderance 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)
17. 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.3,00.000/-, therefore, no useful purpose would be served by sending the cheque for handwriting expert, therefore I am of the view that learned JMFC as well as learned Addl. Sessions Judge have not committed any error in dismissing the application.
18. I am also of the view that the impugned orders passed by the learned Courts below do not suffer from any illegality, perversity or impropriety resulting in failure of justice by non-examination of the hand-writing expert in the Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM 11 facts of the instant case.
19. 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 08 years and the case is pending since 2014.
20. 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's (supra) case.
(DINESH KUMAR PALIWAL) JUDGE kundan Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/28/2022 2:08:59 PM