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 considered opinion that mere non-filing of Income Tax Return
would not automatically dislodge the source of income of the complainant.
Non-payment of Income Tax is a matter between the revenue and the
assessee. If the assessee has not disclosed his income in the Income Tax
Return, then the Income Tax Department is well within its rights to reopen
the assessment of income of the assessee and to take action as per the
provisions of Income Tax Act. However, non-filing of Income Tax Return
by itself would not mean that the complainant had no source of income and
thus, no adverse inference can be drawn in this regard only because of
absence of Income Tax Return.
In the High Court of Madhya Pradesh
CRR 5263/2018
Shrimati Ragini Gupta vs. Piyush Dutt Sharma
Gwalior, dtd. 07-03-2019
This Criminal Revision under Section 397/401 of CrPC has been filed
against the judgment and punishment order dated 12th October, 2018 passed
by 14th Additional Sessions Judge, Gwalior in Criminal Appeal No.83 of
2018, thereby dismissing the appeal filed by the revisionist against the
judgment and punishment order dated 23rd January, 2018 passed by Judicial
Magistrate First Class, Gwalior in Regular Criminal Case No.5068 of 2014,
by which the revisionist has been convicted under Section 138 of
Negotiable Instruments Act and punishment of admonition was given as
well as compensation of Rs.12,69,000/- has been awarded against her.
The necessary facts for the disposal of the present revision in short
are that the respondent/complainant filed a private complaint against the
revisionist under Section 138 of Negotiable Instruments Act, on the
allegation that in the month of June, 2013, the revisionist had obtained a
loan of Rs.10,00,000/- from him and assured that she would refund the said
amount within a period of six months. It was further alleged that in lieu of
the said amount, the revisionist had given a cheque, dated 28th January, 2014
drawn on Andhra Bank, Madhoganj, Gwalior bearing no.119954. The said
cheque was deposited by the respondent in the bank account of AXIS Bank,
Lashkar, Gwalior on 3rd February, 2014 but the same stood dishonoured by
the Bank vide memorandum dated 4th February, 2014 because the bank
account was blocked. It is further alleged in the complaint that thereafter, a
statutory notice dated 13th September, 2014 was sent by the respondent to
the revisionist for payment of cheque amount but the same was returned
back with an endorsement that ''the addressee has left the premises''.
Thereafter, the respondent filed a private complaint before the Trial
Magistrate.
It was the defence of the revisionist that she did not take any loan
amount from the respondent but in fact, the respondent and one Pankaj had
stolen the cheque of the revisionist from the shop of her husband and
accordingly, instructions were given to the Bank to block the account. The
revisionist (DW2) had examined herself as a defence witness under Section
315 of CrPC along with another defence witness, namely, Anil Kumar
Gupta (DW1), the husband of 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 Rs.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
Rs.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 question bears the signature of the revisionist and when the
revisionist had appeared as a defence witness, then no question was put to
her with regard to loan transaction. To buttress his contention, learned
Senior Counsel for the revisionist has relied upon the judgments passed by
the Supreme Court in the case of John K. Abraham vs. Simon C.
Abraham and Another, reported in (2014) 2 SCC 236, K. Subramani vs.
K. Damodara Naidu, reported in (2015) 1 SCC 99, Krishna
Janardhan Bhat vs. Dattatraya G. Hegde, reported in AIR 2008 SC
1325 and the judgments passed by this Court in the case of Rajkumar s/o.
Rajendraprasad vs. Ramcharan s/o. Motilal, reported in 2013 (2) MPLJ
(Cri) 265 and Vinod Kumar Namdev vs. Zubed Ahmed, reported in 2016
(1) MPWN 8.
Per contra, it is submitted by the counsel for the respondent that so far
4
as the signature of the revisionist on the cheque in question is concerned,
except by giving a suggestion that the respondent has forged the signature of
the revisionist, no specific stand was taken by her that the cheque does not
contain the signature of the revisionist. For the first time, in her evidence the
revisionist took a specific stand that the cheque in question does not bear
her signature. Under these circumstances, the respondent immediately filed
an application under Section 45 of Evidence Act for sending the cheque in
question to the Handwriting Expert to rebut the stand of the revisionist. The
said application was vehemently opposed by the revisionist and it was
rejected by the Trial Magistrate. It is submitted that in fact, where the
revisionist herself had disputed her signature on the cheque in question, then
the burden was on her to prove that the cheque in question does not bear her
signature and under these circumstances, when the respondent himself had
moved an application under Section 45 of Evidence Act for sending the
disputed cheque to the Handwriting Expert for verification of the signatures
of the revisionist, then she should not have opposed the application. The fact
that the revisionist was not willing to get her signatures examined from
Handwriting Expert clearly shows that the cheque in question bears her
signature. Even otherwise, if the signatures of the revisionist in the order
sheets of the Trial Court as well as her signature on the cheque are
compared, then it would be clear that the cheque in question 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
5
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 officials are the best
witnesses to verify the signatures of account holders because everyday, they
are required to compare the signatures of various account-holders on
various documents and the cheque of the revisionist was not returned on the
ground of difference in signatures, but it was returned on the ground that the
account has been blocked. Under these circumstances, it cannot be said that
the revisionist had not issued the cheque in favour of the respondent. So far
as non-disclosure of source of income by the respondent is concerned, it is
submitted that the contention of the revisionist that the respondent had not
disclosed his source of income in the Income Tax Return cannot be a
solitary basis for rejecting his evidence. Where issuance of cheque is proved
beyond reasonable doubt and where the signature is not disputed by the
revisionist at the very initial stage, then a presumption under Section 139 of
the Negotiable Instruments Act can be drawn against the accused. The
revisionist has failed to rebut the presumption under Section 139 of the
Negotiable Instruments Act. The respondent has specifically stated that as
his income was not taxable, therefore, he has only submitted the simple
Income Tax Return. The respondent was cross-examined by the revisionist
with regard to his source of income and he has specifically stated that the
respondent was in the business of sale and purchase of vehicles which he
had started in the year 2005 and continued till year 2011 and it was
completely closed in the year 2013-14. From the month of May, 2005, the
respondent is working on the post of Clerk in the Office of State Bar
Council of Madhya Pradesh, Gwalior. It is further submitted that since the
revisionist had family relations with the respondent, therefore, no document
was prepared acknowledging the receipt of amount of Rs.10,00,000/- and
thus, it cannot be said that the respondent had not given any loan to the
revisionist.
Heard the learned counsel for the parties.
The respondent had issued a notice under Section 138 of Negotiable
Instruments Act. Although the said notice was returned with an endorsement
that ''the addressee has shifted to another place'' but the revisionist had sent
a registered notice with Acknowledgment Due to the respondent through her
counsel Shri R.V.S. Ghuraiya. The said registered notice has been exhibited
as Ex.P7. The registered 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. Thereafter, the revisionist was confronted with
the Vaklatnama filed by Shri Rukvendra Singh Ghuraiya, Advocate and a
suggestion was given that she had engaged Shri Rukvendra Singh Ghuraiya,
Advocate, then she stated that the Vaklatnama was blank at the time when
the same was signed by her. The revisionist had also accepted her signatures
on various order sheets of the trial Court. In paragraph 10 of her cross8
examination, she has further admitted as under:-
“10-eSa cSad esa iz0Mh0 3 dk i= nsus fnukad 09-01-14 dks xbZ
FkhA ftl ij , ls ,- Hkkx ij esjs gLrk{kj gSA mDr fnukad pSd
dzekad 119954 xqe gksus dh lwpuk nsus xbZ FkhA Lor% dgk fd mDr
pSd [kkyh FkkA ;g dguk lgh gS fd iz0Mh0 3 ij tks gLrk{kj gS
ogh gLrk{kj cSda es a Hkh esjk ueuw k gLrk{kj gSA --------------------------------^^
Thus, it is clear from her cross-examination that the signatures on the
cheque Ex.D3 have resemblance with specimen signatures of the revisionist
available with the Bank. In the registered notice Ex.P7 dated 15th October,
2014 she had merely stated that the other entries in the cheque were filled
up either by the respondent or by anybody. However, in the notice Ex.P7,
she had never claimed that the cheque does not bear her signature. Further,
the revisionist (DW2) has stated in her examination-in-chief that the cheque
was stolen from the shop of her husband. She had never claimed that the
cheque was stolen from the drawer of the computer table of the revisionist.
However, In the registered notice Ex.P7, she had claimed that the cheque
was stolen from the drawer of the computer table of the revisionist. In the
notice Ex.P7, she had specifically stated as under:-
{Vernaculars omitted}
Thus, it is clear that in the registered notice Ex. P7, she had
specifically stated that the cheque was stolen from the drawer of the
computer table of the revisionist and she came to know on her own after the
drawer of the computer table was checked by her. On the contrary, in her
examination-in-chief, the revisionist (DW2) had stated that the cheque was
stolen from the shop of her husband. In her evidence, the revisionist (DW2)
had stated that she has no family relationship with the respondent and even
the respondent is not known to her, whereas in the notice Ex.P7, she has
specifically stated that the respondent is a family friend of her husband and
he used to visit the house and, therefore, the family members of revisionist
had deep faith on him. Thus, in the registered notice the revisionist had
accepted her acquaintance with the respondent, but in the Court evidence,
she has tried to disown the same. She has further tried to disown the
registered notice Ex.P7 sent 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 considered opinion that mere non-filing of Income Tax Return
would not automatically dislodge the source of income of the complainant.
Non-payment of Income Tax is a matter between the revenue and the
assessee. If the assessee has not disclosed his income in the Income Tax
Return, then the Income Tax Department is well within its rights to reopen
the assessment of income of the assessee and to take action as per the
provisions of Income Tax Act. However, non-filing of Income Tax Return
by itself would not mean that the complainant had no source of income and
thus, no adverse inference can be drawn in this regard only because of
absence of Income Tax Return. Whether there was any loan transaction
between the parties or not and whether there was any legally recoverable
debt or not, is the subject-matter which can be ascertained in the light of
entire case led by the parties. Where the accused has failed to satisfactorily
explain the circumstances under which the cheque was issued by the
accused or misused by the complainant, then it can be safely inferred/
presumed that the cheque was issued in discharge of legally recoverable
dept/liability. It is the case of the revisionist that the respondent had not
given loan to the revisionist. The cheque was stolen from the shop of the
husband of the revisionist and it does not bear her signature, whereas the
evidence which has come on record, clearly establishes that the respondent
had family relations with the revisionist and he was frequently visiting the
house of the revisionist, therefore, it cannot be said that the respondent was
not known to the revisionist. The revisionist, in her registered notice Ex.P7,
had not disputed her signature on the cheque but she had merely stated that
the other entries in the cheque were filled up either by the respondent or he
got it filled from some other person. Merely because the other entries in the
cheque were not filled by the accused, would not absolve her from her
liability arising from the cheque. Section 20 of the Negotiable Instruments
Act draws a presumption in favour of the holder of the cheque.
The Supreme Court in the case of Bir Singh vs. Mukesh Kumar
passed in Criminal Appeal Nos.230-231 of 2019 [SLP (Crl) Nos.9334-35
of 2018] has held as under:-
''41. The fact that the appellant-complainant might have been an
Income Tax practitioner conversant with 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 High Court
ought not to have acquitted the respondent-accused of the charge
under Section 138 of the Negotiable Instruments Act.
43. In our considered opinion, the High Court patently erred in
holding that the burden was on the appellant-complainant to
prove that he had advanced the loan and the blank signed cheque
was given to him in repayment of the same. The finding of the
High Court that the case of the appellant-complainant became
highly doubtful or not beyond reasonable doubt is patently
erroneous for the reasons discussed above.''
Even in the cross-examination of the respondent no suggestion was
given to him that the cheque in question does not bear the signature of the
revisionist. A single suggestion was given to the respondent that he has
forged the signature of the revisionist on the cheque in question, which was
denied by the respondent. The respondent had also clarified in his crossexamination
that out of total amount of Rs.10,00,000/-, he had borrowed
Rs.6 lac from his father and he was having Rs.4 lac with him. It is further
submitted by the counsel for the respondent that after the evidence of the
respondent was recorded, he lost his father, therefore, his father could not be
examined. Thus, it is clear that no specific suggestion was given to the
respondent that the cheque in question does not bear the signature of the
revisionist but a vague suggestion was given that the signature of the
revisionist was forged on the cheque in question. For the first time, in her
evidence, it was stated by the revisionist that the cheque in question does
not bear her signature and accordingly, immediately thereafter, the
respondent filed an application under Section 45 of Evidence Act for
sending the cheque in dispute to the Handwriting Expert for examination of
the signatures of the revisionist. The said application was decided by trial
13
Curt by order dated 2nd January, 2018. However, the crux of the matter is
that the respondent had taken the stand of sending the cheque in question to
the Handwriting Expert for examination of the signatures of the revisionist
but the revisionist did not file any application under Section 45 of Evidence
Act for sending the disputed signatures to the Handwriting Expert. Under
these circumstances, this Court is of the considered view that the remedy
available to the respondent for verification of 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 signature on the cheque
was taken by her at the initial stage. Even in the crossexamination
of the respondent's witnesses before the trial Court
no such specific defence was put forth on behalf of the applicant.
The impugned complaint was filed by the respondent only on the
ground of dishonoring the cheque on account of insufficiency of
fund and not on the ground of difference of signature of the
14
applicant. As such the grounds which are not the subject matter
of the case could not be permitted to raise in the defence. In the
case at hand when the banker of the applicant itself has not
dishonored the cheque on the ground of difference of the
signature then the applicant/ accused could not take such
defence. …...................... My aforesaid approach is fully
fortified by the decision of the Apex Court in the matter of L.C.
Goyal (Supra), in which it was held as under :
(2) Dishonoring of the cheque issued by the appellant
Ex.C/4 by the bank on account of insufficient fund in the
account of the appellant.
The complainant alleged that when the appellant
realized that the complainant has come to know that he has
misappropriated a sum of Rs. 25,491/-, he gave a cheque for
a sum of Rs. 38,000/- which is Ext.C-4. The said cheque was
drawn on UCO Bank and the same was deposited in the
Central Bank of India in the account of Union, viz., Siemens
Employees Union, New Delhi. But the said cheque was
dishonored due to insufficient funds. The appellant denied
his signature on Ext. C-4 and contended that his signature
was forged by the complainant. It is in this context that it
was urged before the Bar Council of India that some handwriting
expert be examined in order to find out the
genuineness of the signature on Ext. C-4. As stated above,
the cheque bounced not on account of the fact that the
signature on Ext. C-4 was not tallying with the specimen
signature of the appellant kept with the Bank, but on account
of insufficient funds. Had the signature on Ext. C-4 been
different, the bank would have returned the same with the
remark that the signature on Ext. C-4 was not tallying with
the appellants specimen signature kept with the bank. The
memos Ext. C-6 and Ext. C-8 issued by the bank clearly
show that signature of the appellant on Ext. C-4 was not
objected to by the bank, but the same was returned with the
remark insufficient fund. This circumstance 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. ..........................
15
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 appellant kept with the bank, but on account of
insufficient funds. Had the signature on Ext C-4 been
different, the bank would have returned the same with the
remark that the signature on Ext C-4 was not tallying with
the appellant's specimen signature kept with the bank. The
memos Ext. C-6 and Ext.C-8 issued by the bank clearly
show that the signature of the appellant on Ext.C-4 was not
objected to by the bank, but the same was returned with the
remark "insufficient funds". This circumstances shows that
the signature of Ext.C-4 was that of the appellant.
8. ...............................................................
9. …..........................................................
7. Aforesaid decision of the Apex Court was further followed by
the Andhra Pradesh High Court in the matter of Manda
Syamsundra (Supra), and the application of the accused
concerned filed under Section 45 of the Evidence Act was
dismissed by following verdicts:
"5. In the light of the above decision and in the light of
the return of the cheque not on the ground of signature
not tallying, no purpose will be served in sending the
documents to the handwriting expert and there are no
grounds to interfere with the order of the Lower Court."
The Supreme Court in the case of Kishan Rao Vs. Shankargouda,
reported in (2018) 8 SCC 165 has held as under:-
''18. Section 139 of the Act, 1881 provides for drawing the
16
presumption in favour of holder. Section 139 is to the following
effect:
"139.Presumption in favour of holder.- It shall be
presumed, unless the contrary is proved, that the holder
of a cheque received the cheque of the nature referred to
in section 138 for the discharge, in whole or in part, of
any debt or other liability."
19. This Court in Kumar Exports vs. Sharma Carpets, 2009 (2)
SCC 513, had considered the provisions of Negotiable
Instruments Act as well Evidence Act. Referring to Section 139,
this Court laid down following in paragraphs 14, 15, 18 and 19:
(SCC pp. 519-20)
"14. Section 139 of the Act provides that it shall be
presumed, unless the contrary is proved, that the holder
of a cheque received the cheque of the nature referred to
in Section 138 for the discharge, in whole or in part, of
any debt or other liability.
15. Presumptions are devices by use of which the
courts are enabled and 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 instrument is either proved or admitted. As
soon as the complainant discharges the burden to prove
that the instrument, say a note, was executed by the
accused, the rules of presumptions under Sections 118
and 139 of the Act help him shift the burden on the
accused. The presumptions will live, exist and survive
and shall end only when the contrary is proved by the
accused, that is, the cheque was not issued for
consideration and in discharge of any debt or liability. A
presumption is not in itself evidence, but only makes a
prima facie case for a party for whose benefit it exists.
19. The use of the phrase "until the contrary is proved" in
Section 118 of the Act and use of the words "unless the
contrary is proved" in Section 139 of the Act read with
definitions of "may presume" and "shall presume" as
given in Section 4 of the Evidence Act, makes it at once
clear that presumptions to be raised under both the
provisions are rebuttable. When a presumption is
rebuttable, it only points out that the party on whom lies
the duty of going forward with evidence, on the fact
presumed and when that party has produced evidence
fairly and reasonably tending to show that the real fact is
not as presumed, the purpose of the presumption is over."
20. This Court held that the accused may adduce evidence to
rebut the presumption, but mere denial regarding existence of
debt shall not serve any purpose. Following was held in
paragraph 20: ( Kumar Exports vs. Sharma Carpets, (2009) 2
SCC 513) SCC p. 520
"20....The accused may adduce direct evidence to
prove that the note in question was not supported by
consideration and that there was no debt or liability to be
discharged by him. However, the court need not insist in
every case that the accused should disprove the nonexistence
of consideration and debt by leading direct
evidence because the existence of negative evidence is
neither possible nor contemplated. At the same time, it is
clear that bare denial of the passing of the consideration
and existence of debt, apparently would not serve the
purpose of the accused. Something which is probable has
to be brought on record for getting the burden of proof
shifted to the complainant. To disprove the presumptions,
the accused should bring on record such facts and
circumstances, upon consideration of which, the court
may either believe that the consideration and debt did 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
18
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 favour of the holder, there
is statutory presumption that it is issued in discharge of a legally
enforceable debt or liability. This presumption is a rebuttable
one, if the issuer of the cheque is able to discharge the burden
that it was issued for some other purpose like security for a loan.
22. In the present case, the respondent has failed to produce
any credible evidence to rebut the statutory presumption. This
would be evident from the following circumstances:-
22. 1 The respondent-accused issued a Pronote for the
amount covered by the cheques, which clearly states that it
was being issued for a loan;
22.2 The defence of the respondent that he had allegedly
issued 10 blank cheques in 1995 for repayment of a loan,
has been disbelieved both by the Trial Court and Sessions
Court, on the ground that the respondent did not ask for
return of the cheques for a period of seven years from
1995.This defence was obviously a cover-up, and lacked
credibility, and hence was rightly discarded.
22.3 The letter dated 09.11.2002 was addressed by the
respondent after he had issued two 1 Refer to K.N. Beena
Vs. Muniyappan and Another[(2001) 8 SCC 458; para 6]
and Rangappa vs. Shrimohan [(2010) 11 SCC 441; para 26]
cheques on 07.08.2002 for Rs.37,00,000/- and
Rs.14,00,000/- knowing fully well that he did not have
sufficient funds in his account. The letter dated 09.11.2002
was an after-thought, and was written to evade liability.
This defence also lacked credibility, as the appellants had
never asked for return of the alleged cheques for seven
years.
22.4 The defence of the respondent that the Pronote dated
07.08.2002 signed by him, was allegedly filled by one
Mahesh-DW.2, an employee of N.R.R. Finances, was
rejected as being false. DW.2 himself admitted in his crossexamination,
that he did not file any document to prove
that he was employed in N.R.R. Finances. On the contrary,
the appellants - complainants produced PW.2 and PW.4,
Directors of N.R.R. Finances Investment Pvt. Ltd., and
PW.3, a Member of N.R.R. Chit funds, who deposed that
DW.2 was never employed in N.R.R. Finances.
23. The appellants have proved their case by over-whelming
evidence to establish that the two cheques were issued towards
the discharge of an existing liability and legally enforceable
debt. The respondent having admitted that the cheques and
Pronote 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
respondent even was not in a position to discharge his burden
to pay instalments in respect of the prized amount, an advance
would be made to him and that too even after institution of
three civil suits. The amount advanced even did not carry any
interest. If in a situation of this nature, the High Court has
arrived at a finding that the respondent has discharged his
burden of proof cast on him under Section 139 of the Act, no
exception thereto can be taken. ''
Thus, this Court has already taken note of the conduct of the parties
which clearly shows that the revisionist has changed her stand from time to
time. In the present case, no FIR was lodged. The place from which the
cheque in question was allegedly stolen, is also in dispute. In her evidence,
the revisionist has stated that the cheque was stolen from the shop of her
husband, whereas in the registered notice Ex.P7 she has stated that the
cheque was stolen from the drawer of her computer table. No specific
suggestion was given to the respondent alleging that the cheque in question
does not bear her signatures. No application was ever filed by the revisionist
under Section 45 of Evidence Act for sending her disputed 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.
The Supreme Court in the case of Bir Singh (supra) has held as
under:-
18. The Appellate Court affirmed the aforesaid factual findings.
The Trial Court and the Appellate Court arrived at the specific
concurrent factual finding that the cheque had admittedly been
signed by the respondent-accused. The Trial Court and the
Appellate Court rejected the plea of the respondent-accused
that the appellant-complainant had misused a blank signed
cheque made over by the respondent-accused to the appellant
complainant for deposit of Income Tax, in view of the
admission of the respondent-accused that taxes were paid in
cash for which the appellant-complainant used to take payment
from the respondent in cash.
19. It is well settled that in exercise of revisional jurisdiction
under Section 482 of the Criminal Procedure Code, the High
Court does not, 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 Rs.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 registered notice
sent by her own counsel, Shri RVS Ghuraiya. If Shri RVS Ghuraiya,
Advocate had sent the registered notice without her instructions, then the
revisionist would have certainly taken action against Shri RVS Ghuraiya in
the Bar Council of Madhya Pradesh. No action was ever taken by the
revisionist against Shri RVS Ghuraiya, which clearly indicates that the
registered notice Ex.P7 was sent by Shri RVS Ghuraiya on the instructions
22
of the revisionist.
This Court is of the considered opinion that 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. Accordingly, the revisionist is held guilty for offence under
Section 138 of Negotiable Instruments Act.
So far as the question of sentence is concerned, the Supreme Court in
the case of Suganthi Suresh Kumar vs. Jagdeeshan, reported in (2002) 2
SCC 420 has held as under:-
''12. The total amount covered by the cheques involved in the
present two cases was Rs.4,50,000. There is no case for the
respondent that the said amount had been paid either during the
pendency of the cases before the trial court or revision before
the High Court or this Court. If the amounts had been paid to
the complainant there perhaps would have been justification for
imposing a flee-bite sentence as had been chosen by the trial
court. But in a case where the amount covered by the cheque
remained unpaid it should be the look out of the trial
Magistrates that the sentence for the offence under Section 138
should be of such a nature as to give proper effect to the object
of the legislation. No drawer of the cheque can be allowed to
take dishonour of the cheque issued by him light heartedly. The
very object of enactment of provisions like Section 138 of the
Act would stand defeated if the sentence is of the nature passed
by the trial Magistrate. It is a different matter if the accused paid
the amount atleast during the pendency of the case. ''
However, in the present case, the Trial Court has adopted a lenient
view by imposing the punishment of admonition only. Since the punishment
of admonition has not been challenged by the respondent, therefore, under
the facts and circumstances of the case, this Court is of the considered
opinion that the punishment of admonition along with compensation amount
of Rs.12,69,000/- so imposed by the Courts below, does not require any
interference. Accordingly, the judgment and order of punishment dated 12th
October, 2018 passed by Appellate Court in Criminal Appeal No.83 of 2018
as well as the judgment and order of punishment dated 23rd January, 2018
passed by Trial Court in Criminal Case No.5068 of 2014 are hereby
affirmed.
The compensation amount of Rs.12,69,000/- was awarded by the
Trial Court after adding interest @ 9 % from the date of issuance of cheque
till the date of delivery of judgment by the trial Court. Accordingly, it is
directed that the said compensation amount shall further carry interest @
9% per annum from the date of judgment of the Trial Court i.e. 23rd January,
2018 till the actual payment is made.
With the aforesaid observations, this revision fails and is hereby
dismissed.
(G.S.Ahluwalia)
JUDGE
Print Page
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 considered opinion that mere non-filing of Income Tax Return
would not automatically dislodge the source of income of the complainant.
Non-payment of Income Tax is a matter between the revenue and the
assessee. If the assessee has not disclosed his income in the Income Tax
Return, then the Income Tax Department is well within its rights to reopen
the assessment of income of the assessee and to take action as per the
provisions of Income Tax Act. However, non-filing of Income Tax Return
by itself would not mean that the complainant had no source of income and
thus, no adverse inference can be drawn in this regard only because of
absence of Income Tax Return.
In the High Court of Madhya Pradesh
CRR 5263/2018
Shrimati Ragini Gupta vs. Piyush Dutt Sharma
Gwalior, dtd. 07-03-2019
This Criminal Revision under Section 397/401 of CrPC has been filed
against the judgment and punishment order dated 12th October, 2018 passed
by 14th Additional Sessions Judge, Gwalior in Criminal Appeal No.83 of
2018, thereby dismissing the appeal filed by the revisionist against the
judgment and punishment order dated 23rd January, 2018 passed by Judicial
Magistrate First Class, Gwalior in Regular Criminal Case No.5068 of 2014,
by which the revisionist has been convicted under Section 138 of
Negotiable Instruments Act and punishment of admonition was given as
well as compensation of Rs.12,69,000/- has been awarded against her.
The necessary facts for the disposal of the present revision in short
are that the respondent/complainant filed a private complaint against the
revisionist under Section 138 of Negotiable Instruments Act, on the
allegation that in the month of June, 2013, the revisionist had obtained a
loan of Rs.10,00,000/- from him and assured that she would refund the said
amount within a period of six months. It was further alleged that in lieu of
the said amount, the revisionist had given a cheque, dated 28th January, 2014
drawn on Andhra Bank, Madhoganj, Gwalior bearing no.119954. The said
cheque was deposited by the respondent in the bank account of AXIS Bank,
Lashkar, Gwalior on 3rd February, 2014 but the same stood dishonoured by
the Bank vide memorandum dated 4th February, 2014 because the bank
account was blocked. It is further alleged in the complaint that thereafter, a
statutory notice dated 13th September, 2014 was sent by the respondent to
the revisionist for payment of cheque amount but the same was returned
back with an endorsement that ''the addressee has left the premises''.
Thereafter, the respondent filed a private complaint before the Trial
Magistrate.
It was the defence of the revisionist that she did not take any loan
amount from the respondent but in fact, the respondent and one Pankaj had
stolen the cheque of the revisionist from the shop of her husband and
accordingly, instructions were given to the Bank to block the account. The
revisionist (DW2) had examined herself as a defence witness under Section
315 of CrPC along with another defence witness, namely, Anil Kumar
Gupta (DW1), the husband of 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 Rs.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
Rs.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 question bears the signature of the revisionist and when the
revisionist had appeared as a defence witness, then no question was put to
her with regard to loan transaction. To buttress his contention, learned
Senior Counsel for the revisionist has relied upon the judgments passed by
the Supreme Court in the case of John K. Abraham vs. Simon C.
Abraham and Another, reported in (2014) 2 SCC 236, K. Subramani vs.
K. Damodara Naidu, reported in (2015) 1 SCC 99, Krishna
Janardhan Bhat vs. Dattatraya G. Hegde, reported in AIR 2008 SC
1325 and the judgments passed by this Court in the case of Rajkumar s/o.
Rajendraprasad vs. Ramcharan s/o. Motilal, reported in 2013 (2) MPLJ
(Cri) 265 and Vinod Kumar Namdev vs. Zubed Ahmed, reported in 2016
(1) MPWN 8.
Per contra, it is submitted by the counsel for the respondent that so far
4
as the signature of the revisionist on the cheque in question is concerned,
except by giving a suggestion that the respondent has forged the signature of
the revisionist, no specific stand was taken by her that the cheque does not
contain the signature of the revisionist. For the first time, in her evidence the
revisionist took a specific stand that the cheque in question does not bear
her signature. Under these circumstances, the respondent immediately filed
an application under Section 45 of Evidence Act for sending the cheque in
question to the Handwriting Expert to rebut the stand of the revisionist. The
said application was vehemently opposed by the revisionist and it was
rejected by the Trial Magistrate. It is submitted that in fact, where the
revisionist herself had disputed her signature on the cheque in question, then
the burden was on her to prove that the cheque in question does not bear her
signature and under these circumstances, when the respondent himself had
moved an application under Section 45 of Evidence Act for sending the
disputed cheque to the Handwriting Expert for verification of the signatures
of the revisionist, then she should not have opposed the application. The fact
that the revisionist was not willing to get her signatures examined from
Handwriting Expert clearly shows that the cheque in question bears her
signature. Even otherwise, if the signatures of the revisionist in the order
sheets of the Trial Court as well as her signature on the cheque are
compared, then it would be clear that the cheque in question 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
5
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 officials are the best
witnesses to verify the signatures of account holders because everyday, they
are required to compare the signatures of various account-holders on
various documents and the cheque of the revisionist was not returned on the
ground of difference in signatures, but it was returned on the ground that the
account has been blocked. Under these circumstances, it cannot be said that
the revisionist had not issued the cheque in favour of the respondent. So far
as non-disclosure of source of income by the respondent is concerned, it is
submitted that the contention of the revisionist that the respondent had not
disclosed his source of income in the Income Tax Return cannot be a
solitary basis for rejecting his evidence. Where issuance of cheque is proved
beyond reasonable doubt and where the signature is not disputed by the
revisionist at the very initial stage, then a presumption under Section 139 of
the Negotiable Instruments Act can be drawn against the accused. The
revisionist has failed to rebut the presumption under Section 139 of the
Negotiable Instruments Act. The respondent has specifically stated that as
his income was not taxable, therefore, he has only submitted the simple
Income Tax Return. The respondent was cross-examined by the revisionist
with regard to his source of income and he has specifically stated that the
respondent was in the business of sale and purchase of vehicles which he
had started in the year 2005 and continued till year 2011 and it was
completely closed in the year 2013-14. From the month of May, 2005, the
respondent is working on the post of Clerk in the Office of State Bar
Council of Madhya Pradesh, Gwalior. It is further submitted that since the
revisionist had family relations with the respondent, therefore, no document
was prepared acknowledging the receipt of amount of Rs.10,00,000/- and
thus, it cannot be said that the respondent had not given any loan to the
revisionist.
Heard the learned counsel for the parties.
The respondent had issued a notice under Section 138 of Negotiable
Instruments Act. Although the said notice was returned with an endorsement
that ''the addressee has shifted to another place'' but the revisionist had sent
a registered notice with Acknowledgment Due to the respondent through her
counsel Shri R.V.S. Ghuraiya. The said registered notice has been exhibited
as Ex.P7. The registered 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. Thereafter, the revisionist was confronted with
the Vaklatnama filed by Shri Rukvendra Singh Ghuraiya, Advocate and a
suggestion was given that she had engaged Shri Rukvendra Singh Ghuraiya,
Advocate, then she stated that the Vaklatnama was blank at the time when
the same was signed by her. The revisionist had also accepted her signatures
on various order sheets of the trial Court. In paragraph 10 of her cross8
examination, she has further admitted as under:-
“10-eSa cSad esa iz0Mh0 3 dk i= nsus fnukad 09-01-14 dks xbZ
FkhA ftl ij , ls ,- Hkkx ij esjs gLrk{kj gSA mDr fnukad pSd
dzekad 119954 xqe gksus dh lwpuk nsus xbZ FkhA Lor% dgk fd mDr
pSd [kkyh FkkA ;g dguk lgh gS fd iz0Mh0 3 ij tks gLrk{kj gS
ogh gLrk{kj cSda es a Hkh esjk ueuw k gLrk{kj gSA --------------------------------^^
Thus, it is clear from her cross-examination that the signatures on the
cheque Ex.D3 have resemblance with specimen signatures of the revisionist
available with the Bank. In the registered notice Ex.P7 dated 15th October,
2014 she had merely stated that the other entries in the cheque were filled
up either by the respondent or by anybody. However, in the notice Ex.P7,
she had never claimed that the cheque does not bear her signature. Further,
the revisionist (DW2) has stated in her examination-in-chief that the cheque
was stolen from the shop of her husband. She had never claimed that the
cheque was stolen from the drawer of the computer table of the revisionist.
However, In the registered notice Ex.P7, she had claimed that the cheque
was stolen from the drawer of the computer table of the revisionist. In the
notice Ex.P7, she had specifically stated as under:-
{Vernaculars omitted}
Thus, it is clear that in the registered notice Ex. P7, she had
specifically stated that the cheque was stolen from the drawer of the
computer table of the revisionist and she came to know on her own after the
drawer of the computer table was checked by her. On the contrary, in her
examination-in-chief, the revisionist (DW2) had stated that the cheque was
stolen from the shop of her husband. In her evidence, the revisionist (DW2)
had stated that she has no family relationship with the respondent and even
the respondent is not known to her, whereas in the notice Ex.P7, she has
specifically stated that the respondent is a family friend of her husband and
he used to visit the house and, therefore, the family members of revisionist
had deep faith on him. Thus, in the registered notice the revisionist had
accepted her acquaintance with the respondent, but in the Court evidence,
she has tried to disown the same. She has further tried to disown the
registered notice Ex.P7 sent 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 considered opinion that mere non-filing of Income Tax Return
would not automatically dislodge the source of income of the complainant.
Non-payment of Income Tax is a matter between the revenue and the
assessee. If the assessee has not disclosed his income in the Income Tax
Return, then the Income Tax Department is well within its rights to reopen
the assessment of income of the assessee and to take action as per the
provisions of Income Tax Act. However, non-filing of Income Tax Return
by itself would not mean that the complainant had no source of income and
thus, no adverse inference can be drawn in this regard only because of
absence of Income Tax Return. Whether there was any loan transaction
between the parties or not and whether there was any legally recoverable
debt or not, is the subject-matter which can be ascertained in the light of
entire case led by the parties. Where the accused has failed to satisfactorily
explain the circumstances under which the cheque was issued by the
accused or misused by the complainant, then it can be safely inferred/
presumed that the cheque was issued in discharge of legally recoverable
dept/liability. It is the case of the revisionist that the respondent had not
given loan to the revisionist. The cheque was stolen from the shop of the
husband of the revisionist and it does not bear her signature, whereas the
evidence which has come on record, clearly establishes that the respondent
had family relations with the revisionist and he was frequently visiting the
house of the revisionist, therefore, it cannot be said that the respondent was
not known to the revisionist. The revisionist, in her registered notice Ex.P7,
had not disputed her signature on the cheque but she had merely stated that
the other entries in the cheque were filled up either by the respondent or he
got it filled from some other person. Merely because the other entries in the
cheque were not filled by the accused, would not absolve her from her
liability arising from the cheque. Section 20 of the Negotiable Instruments
Act draws a presumption in favour of the holder of the cheque.
The Supreme Court in the case of Bir Singh vs. Mukesh Kumar
passed in Criminal Appeal Nos.230-231 of 2019 [SLP (Crl) Nos.9334-35
of 2018] has held as under:-
''41. The fact that the appellant-complainant might have been an
Income Tax practitioner conversant with 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 High Court
ought not to have acquitted the respondent-accused of the charge
under Section 138 of the Negotiable Instruments Act.
43. In our considered opinion, the High Court patently erred in
holding that the burden was on the appellant-complainant to
prove that he had advanced the loan and the blank signed cheque
was given to him in repayment of the same. The finding of the
High Court that the case of the appellant-complainant became
highly doubtful or not beyond reasonable doubt is patently
erroneous for the reasons discussed above.''
Even in the cross-examination of the respondent no suggestion was
given to him that the cheque in question does not bear the signature of the
revisionist. A single suggestion was given to the respondent that he has
forged the signature of the revisionist on the cheque in question, which was
denied by the respondent. The respondent had also clarified in his crossexamination
that out of total amount of Rs.10,00,000/-, he had borrowed
Rs.6 lac from his father and he was having Rs.4 lac with him. It is further
submitted by the counsel for the respondent that after the evidence of the
respondent was recorded, he lost his father, therefore, his father could not be
examined. Thus, it is clear that no specific suggestion was given to the
respondent that the cheque in question does not bear the signature of the
revisionist but a vague suggestion was given that the signature of the
revisionist was forged on the cheque in question. For the first time, in her
evidence, it was stated by the revisionist that the cheque in question does
not bear her signature and accordingly, immediately thereafter, the
respondent filed an application under Section 45 of Evidence Act for
sending the cheque in dispute to the Handwriting Expert for examination of
the signatures of the revisionist. The said application was decided by trial
13
Curt by order dated 2nd January, 2018. However, the crux of the matter is
that the respondent had taken the stand of sending the cheque in question to
the Handwriting Expert for examination of the signatures of the revisionist
but the revisionist did not file any application under Section 45 of Evidence
Act for sending the disputed signatures to the Handwriting Expert. Under
these circumstances, this Court is of the considered view that the remedy
available to the respondent for verification of 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 signature on the cheque
was taken by her at the initial stage. Even in the crossexamination
of the respondent's witnesses before the trial Court
no such specific defence was put forth on behalf of the applicant.
The impugned complaint was filed by the respondent only on the
ground of dishonoring the cheque on account of insufficiency of
fund and not on the ground of difference of signature of the
14
applicant. As such the grounds which are not the subject matter
of the case could not be permitted to raise in the defence. In the
case at hand when the banker of the applicant itself has not
dishonored the cheque on the ground of difference of the
signature then the applicant/ accused could not take such
defence. …...................... My aforesaid approach is fully
fortified by the decision of the Apex Court in the matter of L.C.
Goyal (Supra), in which it was held as under :
(2) Dishonoring of the cheque issued by the appellant
Ex.C/4 by the bank on account of insufficient fund in the
account of the appellant.
The complainant alleged that when the appellant
realized that the complainant has come to know that he has
misappropriated a sum of Rs. 25,491/-, he gave a cheque for
a sum of Rs. 38,000/- which is Ext.C-4. The said cheque was
drawn on UCO Bank and the same was deposited in the
Central Bank of India in the account of Union, viz., Siemens
Employees Union, New Delhi. But the said cheque was
dishonored due to insufficient funds. The appellant denied
his signature on Ext. C-4 and contended that his signature
was forged by the complainant. It is in this context that it
was urged before the Bar Council of India that some handwriting
expert be examined in order to find out the
genuineness of the signature on Ext. C-4. As stated above,
the cheque bounced not on account of the fact that the
signature on Ext. C-4 was not tallying with the specimen
signature of the appellant kept with the Bank, but on account
of insufficient funds. Had the signature on Ext. C-4 been
different, the bank would have returned the same with the
remark that the signature on Ext. C-4 was not tallying with
the appellants specimen signature kept with the bank. The
memos Ext. C-6 and Ext. C-8 issued by the bank clearly
show that signature of the appellant on Ext. C-4 was not
objected to by the bank, but the same was returned with the
remark insufficient fund. This circumstance 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. ..........................
15
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 appellant kept with the bank, but on account of
insufficient funds. Had the signature on Ext C-4 been
different, the bank would have returned the same with the
remark that the signature on Ext C-4 was not tallying with
the appellant's specimen signature kept with the bank. The
memos Ext. C-6 and Ext.C-8 issued by the bank clearly
show that the signature of the appellant on Ext.C-4 was not
objected to by the bank, but the same was returned with the
remark "insufficient funds". This circumstances shows that
the signature of Ext.C-4 was that of the appellant.
8. ...............................................................
9. …..........................................................
7. Aforesaid decision of the Apex Court was further followed by
the Andhra Pradesh High Court in the matter of Manda
Syamsundra (Supra), and the application of the accused
concerned filed under Section 45 of the Evidence Act was
dismissed by following verdicts:
"5. In the light of the above decision and in the light of
the return of the cheque not on the ground of signature
not tallying, no purpose will be served in sending the
documents to the handwriting expert and there are no
grounds to interfere with the order of the Lower Court."
The Supreme Court in the case of Kishan Rao Vs. Shankargouda,
reported in (2018) 8 SCC 165 has held as under:-
''18. Section 139 of the Act, 1881 provides for drawing the
16
presumption in favour of holder. Section 139 is to the following
effect:
"139.Presumption in favour of holder.- It shall be
presumed, unless the contrary is proved, that the holder
of a cheque received the cheque of the nature referred to
in section 138 for the discharge, in whole or in part, of
any debt or other liability."
19. This Court in Kumar Exports vs. Sharma Carpets, 2009 (2)
SCC 513, had considered the provisions of Negotiable
Instruments Act as well Evidence Act. Referring to Section 139,
this Court laid down following in paragraphs 14, 15, 18 and 19:
(SCC pp. 519-20)
"14. Section 139 of the Act provides that it shall be
presumed, unless the contrary is proved, that the holder
of a cheque received the cheque of the nature referred to
in Section 138 for the discharge, in whole or in part, of
any debt or other liability.
15. Presumptions are devices by use of which the
courts are enabled and 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 instrument is either proved or admitted. As
soon as the complainant discharges the burden to prove
that the instrument, say a note, was executed by the
accused, the rules of presumptions under Sections 118
and 139 of the Act help him shift the burden on the
accused. The presumptions will live, exist and survive
and shall end only when the contrary is proved by the
accused, that is, the cheque was not issued for
consideration and in discharge of any debt or liability. A
presumption is not in itself evidence, but only makes a
prima facie case for a party for whose benefit it exists.
19. The use of the phrase "until the contrary is proved" in
Section 118 of the Act and use of the words "unless the
contrary is proved" in Section 139 of the Act read with
definitions of "may presume" and "shall presume" as
given in Section 4 of the Evidence Act, makes it at once
clear that presumptions to be raised under both the
provisions are rebuttable. When a presumption is
rebuttable, it only points out that the party on whom lies
the duty of going forward with evidence, on the fact
presumed and when that party has produced evidence
fairly and reasonably tending to show that the real fact is
not as presumed, the purpose of the presumption is over."
20. This Court held that the accused may adduce evidence to
rebut the presumption, but mere denial regarding existence of
debt shall not serve any purpose. Following was held in
paragraph 20: ( Kumar Exports vs. Sharma Carpets, (2009) 2
SCC 513) SCC p. 520
"20....The accused may adduce direct evidence to
prove that the note in question was not supported by
consideration and that there was no debt or liability to be
discharged by him. However, the court need not insist in
every case that the accused should disprove the nonexistence
of consideration and debt by leading direct
evidence because the existence of negative evidence is
neither possible nor contemplated. At the same time, it is
clear that bare denial of the passing of the consideration
and existence of debt, apparently would not serve the
purpose of the accused. Something which is probable has
to be brought on record for getting the burden of proof
shifted to the complainant. To disprove the presumptions,
the accused should bring on record such facts and
circumstances, upon consideration of which, the court
may either believe that the consideration and debt did 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
18
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 favour of the holder, there
is statutory presumption that it is issued in discharge of a legally
enforceable debt or liability. This presumption is a rebuttable
one, if the issuer of the cheque is able to discharge the burden
that it was issued for some other purpose like security for a loan.
22. In the present case, the respondent has failed to produce
any credible evidence to rebut the statutory presumption. This
would be evident from the following circumstances:-
22. 1 The respondent-accused issued a Pronote for the
amount covered by the cheques, which clearly states that it
was being issued for a loan;
22.2 The defence of the respondent that he had allegedly
issued 10 blank cheques in 1995 for repayment of a loan,
has been disbelieved both by the Trial Court and Sessions
Court, on the ground that the respondent did not ask for
return of the cheques for a period of seven years from
1995.This defence was obviously a cover-up, and lacked
credibility, and hence was rightly discarded.
22.3 The letter dated 09.11.2002 was addressed by the
respondent after he had issued two 1 Refer to K.N. Beena
Vs. Muniyappan and Another[(2001) 8 SCC 458; para 6]
and Rangappa vs. Shrimohan [(2010) 11 SCC 441; para 26]
cheques on 07.08.2002 for Rs.37,00,000/- and
Rs.14,00,000/- knowing fully well that he did not have
sufficient funds in his account. The letter dated 09.11.2002
was an after-thought, and was written to evade liability.
This defence also lacked credibility, as the appellants had
never asked for return of the alleged cheques for seven
years.
22.4 The defence of the respondent that the Pronote dated
07.08.2002 signed by him, was allegedly filled by one
Mahesh-DW.2, an employee of N.R.R. Finances, was
rejected as being false. DW.2 himself admitted in his crossexamination,
that he did not file any document to prove
that he was employed in N.R.R. Finances. On the contrary,
the appellants - complainants produced PW.2 and PW.4,
Directors of N.R.R. Finances Investment Pvt. Ltd., and
PW.3, a Member of N.R.R. Chit funds, who deposed that
DW.2 was never employed in N.R.R. Finances.
23. The appellants have proved their case by over-whelming
evidence to establish that the two cheques were issued towards
the discharge of an existing liability and legally enforceable
debt. The respondent having admitted that the cheques and
Pronote 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
respondent even was not in a position to discharge his burden
to pay instalments in respect of the prized amount, an advance
would be made to him and that too even after institution of
three civil suits. The amount advanced even did not carry any
interest. If in a situation of this nature, the High Court has
arrived at a finding that the respondent has discharged his
burden of proof cast on him under Section 139 of the Act, no
exception thereto can be taken. ''
Thus, this Court has already taken note of the conduct of the parties
which clearly shows that the revisionist has changed her stand from time to
time. In the present case, no FIR was lodged. The place from which the
cheque in question was allegedly stolen, is also in dispute. In her evidence,
the revisionist has stated that the cheque was stolen from the shop of her
husband, whereas in the registered notice Ex.P7 she has stated that the
cheque was stolen from the drawer of her computer table. No specific
suggestion was given to the respondent alleging that the cheque in question
does not bear her signatures. No application was ever filed by the revisionist
under Section 45 of Evidence Act for sending her disputed 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.
The Supreme Court in the case of Bir Singh (supra) has held as
under:-
18. The Appellate Court affirmed the aforesaid factual findings.
The Trial Court and the Appellate Court arrived at the specific
concurrent factual finding that the cheque had admittedly been
signed by the respondent-accused. The Trial Court and the
Appellate Court rejected the plea of the respondent-accused
that the appellant-complainant had misused a blank signed
cheque made over by the respondent-accused to the appellant
complainant for deposit of Income Tax, in view of the
admission of the respondent-accused that taxes were paid in
cash for which the appellant-complainant used to take payment
from the respondent in cash.
19. It is well settled that in exercise of revisional jurisdiction
under Section 482 of the Criminal Procedure Code, the High
Court does not, 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 Rs.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 registered notice
sent by her own counsel, Shri RVS Ghuraiya. If Shri RVS Ghuraiya,
Advocate had sent the registered notice without her instructions, then the
revisionist would have certainly taken action against Shri RVS Ghuraiya in
the Bar Council of Madhya Pradesh. No action was ever taken by the
revisionist against Shri RVS Ghuraiya, which clearly indicates that the
registered notice Ex.P7 was sent by Shri RVS Ghuraiya on the instructions
22
of the revisionist.
This Court is of the considered opinion that 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. Accordingly, the revisionist is held guilty for offence under
Section 138 of Negotiable Instruments Act.
So far as the question of sentence is concerned, the Supreme Court in
the case of Suganthi Suresh Kumar vs. Jagdeeshan, reported in (2002) 2
SCC 420 has held as under:-
''12. The total amount covered by the cheques involved in the
present two cases was Rs.4,50,000. There is no case for the
respondent that the said amount had been paid either during the
pendency of the cases before the trial court or revision before
the High Court or this Court. If the amounts had been paid to
the complainant there perhaps would have been justification for
imposing a flee-bite sentence as had been chosen by the trial
court. But in a case where the amount covered by the cheque
remained unpaid it should be the look out of the trial
Magistrates that the sentence for the offence under Section 138
should be of such a nature as to give proper effect to the object
of the legislation. No drawer of the cheque can be allowed to
take dishonour of the cheque issued by him light heartedly. The
very object of enactment of provisions like Section 138 of the
Act would stand defeated if the sentence is of the nature passed
by the trial Magistrate. It is a different matter if the accused paid
the amount atleast during the pendency of the case. ''
However, in the present case, the Trial Court has adopted a lenient
view by imposing the punishment of admonition only. Since the punishment
of admonition has not been challenged by the respondent, therefore, under
the facts and circumstances of the case, this Court is of the considered
opinion that the punishment of admonition along with compensation amount
of Rs.12,69,000/- so imposed by the Courts below, does not require any
interference. Accordingly, the judgment and order of punishment dated 12th
October, 2018 passed by Appellate Court in Criminal Appeal No.83 of 2018
as well as the judgment and order of punishment dated 23rd January, 2018
passed by Trial Court in Criminal Case No.5068 of 2014 are hereby
affirmed.
The compensation amount of Rs.12,69,000/- was awarded by the
Trial Court after adding interest @ 9 % from the date of issuance of cheque
till the date of delivery of judgment by the trial Court. Accordingly, it is
directed that the said compensation amount shall further carry interest @
9% per annum from the date of judgment of the Trial Court i.e. 23rd January,
2018 till the actual payment is made.
With the aforesaid observations, this revision fails and is hereby
dismissed.
(G.S.Ahluwalia)
JUDGE
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