Saturday, 28 September 2019

Whether burden of proof is on accused to prove how leaves of cheque entered into hands of complainant?

As far as the present case is concerned, in
addition to three reasons, given by the High Court, we
are of the view that the original appellant has not even
explained how the leaves of the cheque entered into the
hands of the complainant. It is urged that in cross examination
of the complainant some suggestions were made
that since the complainant was visiting the office of the
original appellant, he had access to the same. The
complainant had only admitted that he visited the office
of the original appellant but he denied all the other
suggestions. Thereafter, it was for the original

appellant to prove his part of the case.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.664 OF 2012

M. ABBAS HAJI  Vs T.N. CHANNAKESHAVA 

DEEPAK GUPTA, J.

Dated:September 19, 2019

Delay in filing substitution application is
condoned. Application for substitution is allowed and
abatement is set-aside.
This appeal is directed against the order dated
22.10.2008, whereby the High Court allowed the appeal of
the complainant and held the original appellant before us
(since deceased), whose legal representatives are on
record, liable for conviction under Section 138 of the
Negotiable Instruments Act (hereafter referred to as the
"Act"). He was sentenced to pay fine of Rs.5,10,000/- and
in default to undergo simple imprisonment for one year.
The legal heirs, in such a case, are neither liable
to pay the fine or to undergo imprisonment. However, they
have a right to challenge the conviction of their
1
predecessor only for the purpose that he was not guilty
of any offence. We have, therefore, allowed the
application filed by the legal heirs to prosecute this
appeal.
The case set up by the complainant was that the
original appellant had borrowed a sum of Rs.5 lakhs from
him and for repayment of that sum had issued a cheque on
18.11.2000 drawn on State Bank of Mysore. On
presentation, the cheque was dishonoured for want of
sufficient funds. Thereafter, legal notice (Ext.P4) was
issued, which has been duly served upon the original
appellant. According to the complainant, no reply to the
said notice was received and therefore a private
complaint was filed. A defence was raised by the accused
that he had not signed the cheque. During the course of
the trial, the original appellant got the cheque sent to
the handwriting expert for comparison with the admitted
signatures. It is not clear as to what were the admitted
signatures which were sent to the handwriting expert but
the handwriting expert opined that the signatures on the
cheque were not those of the person who had written the
admitted signatures. The Trial Court dismissed the
complaint mainly on the ground that the handwriting
expert had opined that the signatures on the cheque were
not those of the original appellant.
The complainant filed an appeal to the High Court,
which after considering the entire evidence, has

delivered a well reasoned judgment upsetting the judgment
of the Trial Court. The reasons which weighed with the
High Court were that; (1) the original appellant did not
step into the witness box to state that he had not signed
the cheque; (2) that the opinion of the handwriting
expert was only an opinion and not conclusive; (3) that
the original appellant had failed to prove that he had
sent a reply to the notice sent to him by the complainant
because so-called reply was not marked in evidence and no
postal receipt of the same was placed on record.
It is urged before us that the High Court overstepped
the limits which Appellate Court is bound by
criminal cases setting aside an order of acquittal.
Proceedings under Section 138 of the Act are
quasi-criminal proceedings. The principles, which apply
to acquittal in other criminal cases, cannot apply to
these cases. As far as the present case is concerned, in
addition to three reasons, given by the High Court, we
are of the view that the original appellant has not even
explained how the leaves of the cheque entered into the
hands of the complainant. It is urged that in crossexamination
of the complainant some suggestions were made
that since the complainant was visiting the office of the
original appellant, he had access to the same. The
complainant had only admitted that he visited the office
of the original appellant but he denied all the other
suggestions. Thereafter, it was for the original

appellant to prove his part of the case. The High Court,
in our opinion, was right in holding the original
appellant guilty under Section 138 of the Act.
We see no reason to interfere in the appeal, which
is accordingly dismissed.
The amount deposited by the original appellant
along with interest, if any accrued thereon, can be
withdrawn by the complainant.
...................J.
(DEEPAK GUPTA)
...................J.
(ANIRUDDHA BOSE)
New Delhi
September 19, 2019

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