TMI Blog2019 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... puted cheque to the Handwriting Expert for examination of her signatures. On the contrary, in paragraph 10 of her cross-examination, she has specifically admitted that the signature on the cheque resembles with the specimen signatures in the Bank. Even otherwise, the Bank has not returned the cheque on the ground of difference in her signatures. This Court is of the considered opinion that the respondent has succeeded in establishing beyond reasonable doubt, that the cheque bearing no.119954 was issued in lieu of the amount of ₹ 10 lac taken by the revisionist from the respondent and later on, she blocked her entire bank account in stead of issuing instructions of stoppage of particular cheque - the Trial Court as well as the Appellate Court did not commit any mistake in holding that the cheque bearing no.119954 was issued by the revisionist in discharge of legal liability which was returned by the Bank on the instructions of the revisionist - the revisionist is held guilty for offence under Section 138 of Negotiable Instruments Act. Revision dismissed. - CRR 5263/2018 - - - Dated:- 7-3-2019 - Mr G. S. Ahluwalia, J. For The Revisionist : Shri RK Sharma, Senior C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revisionist. After considering the evidence led by the parties, the trial Court convicted the revisionist for an offence under Section 138 of Negotiable Instruments Act and passed the sentence of admonition as well as directed for payment of compensation of ₹ 12,69,000/-. Being aggrieved by the judgment and order of punishment passed by the trial Court, the revisionist filed an appeal before the Appellate Court, which too has been dismissed by the Appellate Court by judgment and order of punishment dated 12th October, 2018 passed in Criminal Appeal No.83 of 2018. Challenging the conviction recorded by both the Courts below, it is submitted by learned Senior Counsel for the revisionist that the respondent has failed to prove his source of income. The respondent was not known to the revisionist. Therefore, there was no occasion for her to take loan of ₹ 10,00,000/- from the respondent. No notice was ever served on the revisionist and the respondent has failed to prove that the cheque was issued in discharge of legal liability. It is further submitted by learned Senior Counsel for the revisionist that the respondent has failed to prove that the cheque in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion bears the signature of the revisionist. It is further submitted that so far as the question of theft of cheque in dispute is concerned, admittedly, the revisionist did not lodge the FIR with regard to theft of cheque. The stand taken by the revisionist that initially she went to the Police Station but the concerning Police, instead of lodging the FIR, had suggested her to go to the Bank for stoppage of payment, therefore, she did not lodge the FIR, cannot be accepted for the simple reason that theft is an offence under the provisions of the Indian Penal Code. If the police had refused to register the FIR, then the revisionist had an efficacious remedy of approaching the Superintendent of Police or of sending the complaint to the concerning Police Station by Registered Post. Further, the revisionist had not stopped the payment of cheque in question but she had blocked her account itself. If the cheque of the revisionist was stolen, then at the most, she could have filed an application for stoppage of payment but she instead of doing that, she had blocked her entire account which clearly shows guilty consciousness of the revisionist. It is further submitted that the Bank offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red notice (Ex.P7) with AD is dated 15th October, 2014, in which it was mentioned that the respondent is the family friend of her husband, as a result of which he frequently visits the shop as well as the house of the revisionist, therefore, the family members of the revisionist had deep faith on the respondent. It was further mentioned in the registered notice that the cheque in dispute had disappeared/misplaced from the drawer of computer table of the revisionist and a complaint was made to the police but the police did not lodge the complaint and instructed the revisionist to inform the Bank. It was also mentioned in the registered notice that the respondent, after taking out the cheque in dispute from the drawer of computer table, has either written the other contents on the cheque on his own or has got it written from somebody else and information of the same was received by the revisionist on 28th August, 2014 and it was also mentioned in the registered notice that neither the Bank nor the respondent has ever given any notice to the revisionist. The revisionist in her crossexamination has stated that she had not sent the notice Ex.P7 through Shri R.V.S. Ghuraiya, Advocate. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Shri RVS Ghuraiya, Advocate. If Shri RVS Ghuraiya, Advocate was never contacted by the revisionist for sending the registered notice, then certainly she would have never engaged him as her counsel, whereas in the cross-examination, she has specifically admitted that Shri RVS Ghuraiya was engaged by her as her counsel. Thus, the subsequent conduct of the revisionist in disowning her own counsel clearly indicates that she was not telling the truth before the Court. So far as the contention of the revisionist that the respondent has failed to disclose his source of income is concerned, this Court is of the considered opinion that in view of the presumption provided under Section 139 of Negotiable Instruments Act, the burden shifts to the accused to dislodge the presumption. In the present case, the respondent was crossexamined in detail with regard to his source of income. It is submitted by learned Senior Counsel for the revisionist that as the respondent has never disclosed his source of income in the Income Tax Return and the respondent has never filed his Income Tax Return, therefore, it should be presumed that he did not have any source of income. This Court is of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should have given or signed blank cheque to the appellant complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them. 42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellantcomplainant being the payee in the presence of the respondentaccused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signatures on the disputed cheque was availed by him, whereas the revisionist except by denying her signatures in her defence evidence, did not take any step for sending the same to the Handwriting Expert for examination of her signatures. Furthermore, in the present case, the cheque in question was not returned by the Bank on the ground of difference in her signatures. A coordinate Bench of this Court in the case of Sadhna Pandey (Smt.) vs. PC Jain, reported in ILR (2016) MP 865, has held as under:- 5. Having heard the counsel at length, keeping in view their arguments in order to decide the controversy, I have carefully gone through the revision memo as well as the impugned order of the revisional Court. On perusing such order, I have gathered the information that the impugned cheque given by the applicant to the respondent to pay the due consideration was dishonored by the banker of the applicant on the ground of insufficiency of fund and not on any other ground. I have not found any reply of the applicant, given by him to the respondent, in response of his demand notice given to her before filing the complaint, to show that such defence regarding difference of sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance shows that the signature on Ext. C-4 was that of the appellant. ( 3) . . . . . . . . . . . . . . . . . . . . 4) No reply to the notices (Exts.C-12 and C-13) dated 9.6.93 and 11.1.93, respectively................................. 5) No FIR lodged with regard to theft of the cheque book. .......................... 6. Subsequently such case law was followed by the Karnataka High Court in the matter of H. M. Satish (Supra), in which it was held as under: 7. In the case of denial of signature of drawer of a cheque, the best witness would be the concerned Bank Manager and not a hand writing expert The learned Magistrate has allowed the application solely on the ground that the accused would be put to greater hardship if the application were rejected. The learned magistrate has not appreciated the facts on record while allowing the application. It is useful to refer to the decision of the Hon'ble Apex court rendered in L. C. Goyal vs. Mrs. Suresh Joshi and Ors. has observed in para 8 of its judgment as under that ...the cheque bounced not on account of the fact that the appellant of Ext.C-4 was not talking with the specimen signature of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) may presume (rebuttable), (2) shall presume (rebuttable), and (3) conclusive presumptions (irrebuttable). The term presumption is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the presumed fact drawn by a judicial tribunal, by a process of probable 13 reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means taking as true without examination or proof . * * * 18. Applying the definition of the word proved in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist... 21. In the present case, the trial court as well as the Appellate Court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank of the presumption under Section 139 was rightly raised which was not rebutted by the accused. The accused had not led any evidence to rebut the aforesaid presumption. The accused even did not come in the witness box to support his case. In the reply to the notice which was given by the appellant the accused took the defence that the cheque was stolen by the appellant. The said defence was rejected by the trial court after considering the evidence on record with regard to which no contrary view has also been expressed by the High Court. The Supreme Court in the case T.P. MURUGAN (DEAD) THR. LRS. vs. BHOJAN reported in (2018) 8 SCC 469 has held as under:- 21. We have heard Senior Counsel for both parties, and perused the record. Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te were signed by him, the presumption under S.139 would operate. The respondent failed to rebut the presumption by adducing any cogent or credible evidence. Hence, his defence is rejected. 24. In view of the aforesaid facts and circumstances, the impugned order dated 27.09.2013 passed in Criminal Revision Petition Nos. 1657 and 1658 of 2008 is hereby set aside, and the order of Conviction and Fine passed by the Trial Court is restored. The Supreme Court in the case of John K. John vs. Tom Varghese and another, reported in JT 2007 (13) SC 222 has held as under:- 10. The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record. 20. As held by this Court in Southern Sales and Services and Others vs. Sauermilch Design and Handels GMBH2, it is a well established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is therefore, in the negative. Under these circumstances, this Court is of the considered opinion that the respondent has succeeded in establishing beyond reasonable doubt, that the cheque bearing no.119954 was issued in lieu of the amount of ₹ 10 lac taken by the revisionist from the respondent and later on, she blocked her entire bank account in stead of issuing instructions of stoppage of particular cheque. Although the notice issued by the respondent under Section 138 of Negotiable Instruments Act was received back unserved, but the revisionist on her own had sent the registered notice to the counsel for the respondent. The revisionist had also tried to dispute the registe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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