TMI Blog2021 (9) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... m. He has simply asserted that the said cheque was taken by complainant from his house and his signature was forged, but the bank endorsement discloses that the cheque was not returned on the ground that the signature mismatch but it was returned for want of sufficient funds. If at all the signature on Ex.P2 is being disputed by him, nothing prevented the accused/appellant to produce his specimen signature available for the period from 1998 to 2003, but he did not do so. The presumption is a statutory presumption and when prima- facie material evidence is placed, the onus shifts on the accused to rebut the said presumption - when accused is making allegation regarding forgery of his signature, he would not have kept quiet and he would h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FOR R2 ORDER The revision petitioner has filed this revision petition for setting aside the judgment dated 30.07.2015 passed in Criminal Appeal No.3/2013 by the II Additional Sessions Judge and the judgment of conviction and order on sentence dated 05.12.2012 passed in C.C.No.275/2002 by the Principal Civil Judge and JMFC, Dharwad and sought for his acquittal. 2. For the sake of convenience, parties herein are referred with original ranks occupied by them before the Trial Court. 3. The brief facts leading to the case are that the accused is a dealer in real estate business and he has entered into an agreement of sale in favour of complainant on 10.06.1999 as a GPA holder of S.S.Wadeyar in respect of the land bearing survey No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t recorded under 313 of Cr.P.C., except formal denial. After hearing the arguments, the learned Magistrate has convicted the accused under Section 255(2) of Cr.P.C. for the offence punishable under Section 138 of the Act and imposed fine of ₹ 4,00,000/- with a default clause of simple imprisonment of one year. 4. The said judgment of conviction and order on sentence was challenged by the accused in Criminal Appeal No.3/2013 before the learned II Additional District and Sessions Judge, Dharwad. The learned Sessions Judge secured the records and after hearing both the parties and after perusing the records, by judgment dated 30.07.2015 dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the Courts below have committed an error in holding that the accused has committed an offence punishable under Section 138 of the N.I. Act and the judgment of conviction and order on sentence of the Trial Court and the judgment of the Appellate Court calls for any interference? 8. As per the case of the complainant, the accused has issued a cheque as per Ex.P2 in discharge of his legally enforceable liability of ₹ 2,00,000/- towards refund of earnest amount received by him in pursuance of the agreement of sale as per Ex.P1. Admittedly, the said cheque when presented was dishonoured for the reason insufficient funds . Further there is no dispute that a legal notice has been issued and the accused in spite of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h real estate, he should have documents containing his specimen signature for the period 1998 to 2003, but he has not produced them. Hence, both the Courts below have rightly drawn adverse inference against him for having withheld the material documents. 10. The accused has disputed his signature on Ex.P1 and further alleged that his signature on Ex.P2 is forged, but he has admitted his signature on Ex.P7. Even on perusal of his admitted signatures available and signature on Ex.P7, when compared with each other, it is evident that they differ. Looking to the conduct of the accused, both the Courts below have clearly observed that the accused is in the habit of changing his signatures regularly and he has also signed in difference ways be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uriae was also appointed by this Court which discloses his conduct. Both the courts below have specifically looking to the conduct of the accused have observed that he is in the habit of changing the style of his signature from time to time and he is in the habit of changing the advocates to defend his case with an intention to obstruct the proceedings and abuse the process of the Court. The statutory presumption under Section 139 of the Act is in favour of the complainant. The accused has not rebutted the said presumption. His conduct also establishes that he has not taken any steps to rebut the presumption and failed to produce his specimen signatures for the period 1998 to 2003 which led to drawing adverse inference against him. His sile ..... X X X X Extracts X X X X X X X X Extracts X X X X
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