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TMI Blog2023 (11) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... assuring him that there would have been sufficient funds in his bank account to honour the same. Accordingly, the 1st respondent presented that cheque before the drawee bank, but it was dishonoured due to insufficiency of funds, and it was returned to the 1st respondent along with a memo dated 17.10.2006. He sent lawyer notice to the revision petitioner in the address of his business place and also at his residential address, intimating dishonour of the cheque and demanding the cheque amount. In spite of receipt of that notice, he failed to repay the amount and hence he filed the complaint under Section 138 of the N.I Act. 3. On appearance of the revision petitioner on summons, the learned trial court read over and explained the particulars of offence, to which he pleaded not guilty and claimed to be tried. 4. PWs 1 and 2 were examined and Exts.P1 to P6 were marked from the side of the 1st respondent. The revision petitioner denied all the incriminating circumstances brought out in evidence, in his 313 examination. But, no defence evidence was adduced. 5. The trial court, on analysing the facts and evidence, found the revision petitioner guilty under Section 138 of the N.I Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do justice in accordance with the principles of criminal jurisprudence, and therefore it would not be appropriate for the High Court to re-appreciate the evidence and to enter into a contra finding based on its own conclusions, unless there is any glaring feature brought to the notice of the court which would tantamount to gross miscarriage of justice. In this backdrop, let this court analyse the scope of this revision. 10. The revision petitioner is challenging the judgment of the appellate court mainly on the ground that, Ext.P1 cheque was issued not for discharge of any legally enforceable debt. According to him, he had availed a loan for his vehicle from the financial institution run by the 1st respondent, and some blank documents including a blank cheque signed by him, were given as security, and on closing that loan, those documents were returned, except the blank cheque, saying that, it was misplaced somewhere. Subsequently, misusing that cheque, a false case was foisted by the 1st respondent. 11. The revision petitioner is alleging transaction with the financial institution of the 1st respondent in connection with a vehicle loan. But no scrap of paper has been produced b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ext.P1 cheque was filled up in a different ink in a different handwriting and that itself will substantiate his case. 14. In Bir Singh v. Mukesh Kumar [2019 (1) KHC 774: (2019) 4 SCC 197 : 2019 (1) KLT 598], the Apex Court held that, when a signed blank cheque is voluntarily given to a payee, towards some payment, the payee may fill up the amount and other particulars, and that will not invalidate the cheque. The onus to rebut the presumption under Section 139 of the N.I Act that the cheque has been issued in discharge of a debt or liability, is on the revision petitioner. Even if a blank cheque leaf is voluntarily signed and handed over by the accused, towards some payment, it would attract the presumption under Section 139 of the N.I Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 15. Paragraphs 37 to 40 of the judgment cited supra read thus : "37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, S.20, S.87 and S.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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had given that cheque under any threat or coercion. As the payment is proved through Ext.P6, the only presumption is that, Ext.P1 cheque was issued towards discharge of that debt. 17. The revision petitioner failed to adduce any cogent evidence to show that, the cheque given by him was not towards discharge of any legally enforceable debt. The contentions with regard to the vehicle loan, entrustment of blank cheque etc. are liable to be rejected, as no evidence is forthcoming to support the same. As he is admitting that, Ext.P1 cheque was signed by him and it was voluntarily given by him to the 1st respondent, not under any threat or coercion, the presumption under Section 139 of the N.I Act is very much available to the 1st respondent, and the revision petitioner failed to rebut that presumption. 18. Another argument put forward by the learned counsel for the revision petitioner is that, in 313 examination, the learned Magistrate did not put all the circumstances appearing in evidence against the revision petitioner and so, he did not get an opportunity to give proper explanation, which according to him, amounts to serious irregularity which would vitiate the trial. 19. In As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... named in Ext.P6 was not the revision petitioner herein. The mode of advancing the amount to the revision petitioner, was not an incriminating material to be confronted with the revision petitioner during his 313 examination, as long as he was not disputing Ext.P1 cheque bearing his signature, and dishonour of that cheque for insufficiency of funds. The discrepancy if any in the statement of PW1 regarding the mode of payment of the amount to the revision petitioner, may be a circumstance, available to the revision petitioner, to challenge the genuineness of the transaction alleged by the 1st respondent. At any rate it cannot be treated as an incriminating circumstance brought out against the revision petitioner to be put, in his examination under Section 313 of Cr.P.C. 22. Section 313 Cr.P.C reads thus: "313. Power to examine the accused.-(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) xxx xxx xxx" 23. As the mode of advancing the amount to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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