9911796707
TMI Blog2022 (6) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... r short, 'Court below') alleging commission of offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'N.I Act'). Revision petitioner in Crl.R.P No. 43/2019 is the complainant in the above prosecution. 2. The complainant's averments in the complaint filed under Section 142 N.I Act to launch the prosecution are to the following effect: Himself and the accused were known to each other and the accused demanded a sum of Rs. 5,00,000/- on 10.05.2008 and he advanced the same to him. To discharge the said liability a cheque bearing No. 324294 dated 10.10.2008 drawn on State Bank of India, Civil Station, Kudappanakunnu Branch was issued by the accused. The cheque was presented by the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to PW 1, due to shivering of hands of accused his wife was made to fill up the entries in Ext. P1 cheque. Signature alone was put by him. According to him, the above factum recorded by the wife of the accused in a paper and given to him on 10.05.2008, the date on which Rs. 5,00,000/- was borrowed from him is marked in evidence as Ext. P10. Ext. P10 was shown to DW 1 and he identified the signature affixed in it as his own. But, he denied the signature found in Ext. P10 allegedly put by his wife. He also denied the authorship of the handwritings by which entries in Ext. P10 are filled as that of his wife. DW 1 gave a version that when tensed, his hands used to shiver. 6. The wife of the accused was examined as DW 2. According to he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of the transaction itself creates some doubt about his version. 9. From the discussion above, this Court is convinced that the signatures in Exts. P1 and P10 were admittedly affixed by the accused (DW 1). The signature and writings in Ext. P10 allegedly authored by the wife of the accused were disowned by her. 10. The impact of denial of writings in a cheque in a prosecution u/s. 138 N.I. Act was dealt with by the Apex Court in Bir Singh Vs. Mukesh Kumar [2019 (1) KHC 774 (SC)] and held: "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 the accused to prove that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish issuance of the cheque towards the discharge of a legally enforceable debt. The Apex Court has also held: "37. 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 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." "40. Even a blank cheque leaf, volu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The oral evidence tendered by the accused and his witness and the documentary evidence of Exts. P1 to P10 did not help him to rebut the presumption. Crl.R.P. No. 19/2019 filed by the accused is only to fail. 14. Criminal Revision Petition No. 43/2019 was filed by the complainant, who is the 1st respondent in Criminal Revision Petition No. 19/2019 seeking to restore the sentence imposed on the accused by the trial court after setting aside the modification made by the appellate court. 15. The trial court after finding the accused guilty for the offence under Section 138 NI Act had imposed a substantive sentence of imprisonment till rising of the court and fine of Rs. 7,02,500/- and to undergo simple imprisonment for four months as default ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
