Madhya Pradesh High Court
Smt. Sunita Dubey vs Hukum Singh Ahirwar on 1 December, 2014
1 Cri.Rev.Nos. 56/14 & 59/14
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
***
Present HON. SHRI JUSTICE B.D.RATHI *** (Cri. Rev. No.56/2014) Smt. Sunita Dubey Vs. Hukum Singh Ahirwar Connected with (Cri. Rev. No.59/2014) Smt. Sunita Dubey Vs. Dev Kishan Ahirwar Shri P.S.Raghuvanshi, Advocate for the petitioners in both the revisions.
Shri V.D.Sharma, Advocate with Smt. Monika Mishra, Advocate for the respondents in both the revisions.
O rder st (Passed on 1 Day of December, 2014) Per B.D.Rathi, J. -
As the grievance raised in the aforesaid two cases is identical and of similar nature, heard together and 2 Cri.Rev.Nos. 56/14 & 59/14 disposed of by this common order.
(2) Both the revisions have been preferred under Section 397/401 of the Code of Criminal Procedure 1974 in short the 'Code' against an order dated 17/12/2013 passed by the Fourth Additional Sessions Judge Vidisha district Vidisha (M.P.),in Criminal Revision Nos.118/2013 & 119/2013 whereby the applications of the respondents/ accused under Section 45 of the Indian Evidence Act were allowed by setting aside the orders of dismissal passed by the trial court dated 6/8/2013 in Criminal Case Nos. 232/12 and 475/12.
(3) For facility of reference, the facts are being taken from Cri.Rev.No.56/14. As per the case of the petitioner/complainant, she advanced a sum of Rs. 2,00,000/- to the respondent/accused and in turn the respondent-Hukum Singh issued a cheque No.892743 dated 12/9/2011 in favour of the complainant/petitioner drawn on State Bank of India Branch Vidisha. When the petitioner presented the said cheque at the concerning Bank same came to be dishonoured for want of sufficient fund in the account of the holder of the cheque. The complainant then issued notice to the accused, demanding payment within fifteen days from the receipt of the notice failing which the respondent/accused was liable to be prosecuted for having committed offence punishable under section 138 of the Negotiable Instruments Act, but as the respondent/accused refused to pay even after receipt of the notice, a complaint under section 138 of the Negotiable Instruments Act was filed by the petitioner in the Court of the Judicial Magistrate, against him.
3 Cri.Rev.Nos. 56/14 & 59/14(4) During the course of proceedings of the trial in the complaint case, the accused moved an application under section 45 of the Evidence Act. The gist of the application is to the effect that the accused had taken only a sum of Rs. 1,50,000/- on credit out of which Rs. 96,000/- was paid by him to the complainant and he was further ready to pay balance amount of Rs. 54,000/-. He denied to have taken a sum of Rs. 2,00,000/- from the complainant. He also denied to issue a cheque against the debt of Rs. 2,00,000/- in favour of the complainant on 12/9/2011. On the other hand, he stated that the complainant had taken two blank cheques from him as a security bearing No.221478 and 892743 and same were signed by him as account holder. It is submitted that the complainant after filling the date of 12/9/2011 and the amount of Rs. 2,00,000/- in Cheque No. 892743 presented at the bank for encashment. Under these circumstances in order to verify the correctness of the alleged act of the complainant the respondent/accused moved an application under section 45 of the Evidence Act before the trial court for seeking the relief to examine insertion of the entries in the cheque through Handwriting Expert. Said application was rejected vide order dated 6/8/2013 passed in Criminal Case No.232/12. Against the dismissal order dated 6/8/2013, the accused preferred Cri.Rev.No.119/13 before the Revisional Court. The learned Revisional Court after considering the arguments of both the sides, allowed the prayer of the accused vide impugned order, assailed herein, hence, the revision before this court.
(5) Similarly, same application under section 45 of the 4 Cri.Rev.Nos. 56/14 & 59/14 Evidence Act was filed in Cri. Case No. 475/12 by the respondent-accused Devkishan by alleging that Cheque No.540211 was signed by him but other entries were full filled by the complainant, therefore, to verify the alleged act of the complainant an expert opinion may be called. The application was dismissed against which Cri. Rev. No.118/13 was preferred. Same was allowed and the impugned order was passed.
(6) Learned counsel for the petitioner contended that in the application filed under section 45 of the Evidence Act it was admitted by the accused that the cheque was signed by him, therefore, the revisional court was in error to allow the application after setting aside the order of the trial court whereby application of the accused was dismissed. It is also submitted by the counsel that as per section 20 of the Negotiable Instruments Act, 1881 when incomplete cheque was issued by the accused it means accused gives prima facie authority to the holder thereof to make or complete the cheque and in such a situation if any further entry was made by the complainant then same cannot be examined through opinion by the Handwriting Expert. It is therefore contended that the order impugned is liable to be quashed. In support of the arguments, learned counsel for the petitioner placed reliance on the decisions in the case of Bhadauria Tiles Vs. Ramkumar Singh Kushwah 2011(4) MPHT 178 and Satyendra Upadhyaya Vs. Omprakash Rathore @ Japan Singh 2010(5) MPHT 104.
(7) On the other hand, learned counsel for the 5 Cri.Rev.Nos. 56/14 & 59/14 respondent contended that the revisional court has not committed any illegality in passing the order. The order was necessitated to bring out the truth in the prosecution case, but unfortunately, prayer of the accused was rejected by the trial court which mistake was corrected by the revisional court. It is therefore prayed that this revision be dismissed. It is also submitted by the learned counsel that when complainant Sunita Dubey (PW-1) was examined during her cross-examination in para 18, it was admitted by her that the accused signed the cheque by using blue ink but remaining entries were written in black ink. It is also pointed out by the learned counsel for the respondent/accused that complainant Sunita Dubey (PW-1) in her cross-examination denied the suggestion that blank space of the cheque was filled by herself by using black ink or through anybody else. In this connection learned counsel submitted that because blank portion of the cheque was not completed by the accused therefore, in such circumstances presumption cannot be drawn under section 20 of the NI Act and to rebut the same if opportunity is given by the revisional court, the order cannot be said to be faulted with. It is also submitted by the counsel for the respondent that any kind of presumption is rebutable and in that view granting of opportunity by the revisional court to examine the entries by the Handwriting Expert is in accordance with law and no interference is warranted. In support of her arguments, learned counsel placed reliance on the decisions in the cases of Nandlal S/o Dayaram Dewani & others Vs. State of Maharashtra 2007(1) MPLJ 84 and Ronald Wood Mathams Vs. State of West Bengal (AIR 1954 SC 455).
6 Cri.Rev.Nos. 56/14 & 59/14(8) Having regard to the arguments advanced, the entire case has been examined.
(9) To arrive at just conclusion, it would be profitable to reproduce provisions of section 20 of the NI Act. Section 20 of the Negotiable Instruments Act reads as follows:-
"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 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."
(10) A bare perusal of the provisions shows that there is a clear mandate under section 20 of the Negotiable Instruments Act to the effect that such an instrument can be negotiated by the maker thereof by simply signing and delivering the same to the holder in due course giving thereby ample authority to the latter to fill up the content of the instrument as intended by the maker thereof. Once the execution is admitted, it shall be taken that the cheque was issued by the accused in favour of the complainant towards the discharge of the liability.
7 Cri.Rev.Nos. 56/14 & 59/14(11) In the present case, it is admitted position that the cheques were signed by the accused persons. The provisions given in section 20 of the NI Act extracted above makes it clear that the instrument may be wholly blank or incomplete in any particular; in either case, the holder has the authority to make or complete the instrument as a negotiable one. The authority implied by a signature to a blank instrument is so wide that the party so signing is bound to a holder in due course even though the holder was authorised to fill for a certain amount. Section 20 of the Act declares that inchoate instruments are also valid and legally enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability.
(12) Now coming to the facts of the present case, though the respondent/accused had admitted that the signed cheque was issued by him but it was denied that the same was issued voluntarily by him in favour of the petitioner against due payment. On the other hand, it was sought to be contended that the cheque had been issued for the security purposes but was misused by the petitioner/complainant after having filled up the details by herself. But as discussed above, as per Section 20 of the NI Act, an individual is authorised to complete the inchoate instrument deliver to him by filling up the blanks. Moreover, a blank cheque could be filled up by the 'Holder thereof', which will be a valid instrument in the eye of Law.
(13) As regards the plea taken on behalf of the respondent by his learned counsel that in para 18 of 8 Cri.Rev.Nos. 56/14 & 59/14 cross-examination the complainant-Sunita Debey (PW-1) denied the suggestions made to her that blank space was filled by herself it means blank space of the cheque was not filled by the holder, therefore, benefit of section 20 of the NI Act cannot be given to the complainant/petitioner. This submission of the learned counsel is not tenable because it is a case of the respondent/accused himself that the blank space of the cheque was filled by the complainant/petitioner (holder of the cheque), and being so, proposal was made by the accused in cross-examination of the complainant. It makes no difference whether proposal was accepted or denied but when case itself was of accused that the cheques were filled by the complainant then in view of defence of the accused-persons certainly, the complainant/petitioner has right to get benefit under section 20 of the NI Act and there is no need to examine the Handwriting Expert to verify whether the contents of the cheques were written by the complainant or not.
(14) That apart it is not a case of presumption but it is a case of "authority", therefore, the arguments advanced by the counsel for the respondent and decisions cited in support thereof are not acceptable. Hence, in the considered opinion of this court, the revisional court committed an error to allow the applications under section 45 of the Evidence Act. The impugned orders passed by the revisional court dated 17/12/2013 in Criminal Revision Nos.118/2013 & 119/2013 are therefore not sustainable in law and are set aside. Accordingly, both the revisions are allowed in confirmation with the orders passed by the trial court 9 Cri.Rev.Nos. 56/14 & 59/14 dated 6/8/2013 in Criminal Case Nos. 232/12 and 475/12.
(15) A copy of this order be sent to the trial court for proceeding further as per law.
(B.D.Rathi) Judge (Bu)