Gujarat High Court
Jayendrasinh Govubha Chauhan vs Shree Jamkandorna Juth Seva Sahkari ... on 21 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2406 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAYENDRASINH GOVUBHA CHAUHAN
Versus
SHREE JAMKANDORNA JUTH SEVA SAHKARI MANDLI LTD. & ANR.
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Appearance:
MR. HARDIK B KORADIYA(9955) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS CM SHAH, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/02/2024
ORAL JUDGMENT
Heard learned advocates for the respective parties..
Rule Learned APP waives service of notice of rule on
behalf of respondent-State.
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2. By way of this application under Section 482 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as
"Cr.P.C."), the applicant has prayed to quash and set aside
the impugned order dated 16.01.2024 passed by the learned
5th Additional Sessions Judge, Rajkot at Dhoraji and order
dated 28.06.2023 passed by the learned Judicial Magistrate
First Class, Jamkandorna in Criminal Case No.249 of 2021
and all the consequential proceedings arising therefrom.
3. It is the case of the petitioner that the petitioner
accused is facing the trial under the provisions of N.I. Act.
The present applicant has preferred the application to send
the cheque at FSL, Gandhinagar to verify the ageing of
ink/check/analysis, before the learned Judicial Magistrate
Court, Jamkandorna below Exh.55.
4. It appears that the Trial Court has dismissed the said
application on the ground that the petitioner has not
disputed his signature below impugned cheque and no such
contention has been raised by the accused in his notice and
no any defence is put forward, only application is given for
verification of the ink, as such, no document is available and
even otherwise though ample opportunity was given to the
accused to prove his defence and only with a view to
protract the trial, the present application is filed and the
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present application came to be dismissed on 28.06.2023.
5. Being aggrieved and dissatisfied, the present petitioner
is before the Court of learned 5th Additional Sessions Judge,
Rajkot at Dhoraji by way of Criminal Revision Application
No.47 of 2023, wherein also learned Additional Sessions
Judge, Rajkot at Dhoraji also come to the conclusion that the
order passed by the learned Trial Court is just, legal and
proper and no any illegality is noticed and further signature
is admitted and as decree is passed in favour of the original-
complainant - Society, which is unchallenged.
5.1. Considering the aforesaid fact, only with a view to
protract the litigation, the present application is filed and
the learned Revisional Court rejected the application and
upheld the order passed by the learned Trial Court.
6. Considering the fact that there is in the record in the
order, it appears that the findings and reasons recorded by
the learned Trial Court tune with legal and settled position
of law and once signature is admitted, the question does not
arise to send the disputed cheque in FSL.
7. Learned advocate has mainly relied on the various
decisions of the Gujarat High Court, other High Court as well
as the Hon'ble Apex Court, which reads thus :
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(i) In case of T.Nagappa vs. Y.R. Muralidhar reported in 2008
(2) G.L.H. 553, (ii) In case of Shashikant Shamaldas Patel vs.
State of Gujarat reported in 2022(0) AIJEL-HC 244469, (iii)
Elumalai vs. Subbaramani reported in 2011 LawSuit(Mad)
874, (iv) In case of Sakalabhaktula Vinod Kumar vs. Boina
Govinda Raju passed in Civil Revision Petition No.3329 of
2019 and (v) in case of MIR Asif Ali & Ors. vs. Md. Abdul
Khaleel passed Civil Revision Petition No.102 of 2023 dated
10.03.2023.7.1. Learned advocate for the petitioner has
submitted that in case of MIR Asif Ali (supra), it is observed
that both the Courts below have committed an error and
cheque is required to be sent to the FSL for verification of
ageing of ink.
7.2. It is further submitted that while rejecting the said
application both the Courts below caused the prejudice and
injustice to the accused and the accused denied to the fair
trial.
8. I have given thoughtful consideration to the arguments
canvassed by learned advocates for both the sides. It is
worth to mention that that prior to filing of the complaint,
the statutory notice came to be issued to the accused and no
reply has been given and hence no any probable defence
has been raised by the present petitioner.
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9. In view of the law laid down by the Hon'ble Apex Court
in case of Tedhi Singh v. Narayan Dass Mahant, reported in
(2022) 6 SCC 735, it appears that In absence any probable
defence and as signature on the cheque has been admitted.
Hence, it is needless to say that once cheque is admitted
then there is a presumption under Section 139 of the N.I.
Act, which is governed by the presumption and the Court
shall have to presume that there is existence of the legally
enforceable debt. In this regard, reference is required to be
made in case of K. Ramesh vs. K. Kothandaraman reported in
Criminal Appeal [Arising out of SLP (Crl.) No.3377 of 2019] dated
06.02.2024, wherein the Hon'ble Apex Court has observed as
under :
xxx xxx xxx xxx xxxx xx
4. Learned counsel for the appellant drew our attention
to the latest judgment of this Court in the case of Bir
Singh vs. Mukesh Kumar, (2019) 4 SCC 197 ('Bir
Singh') and contended that having regard to Section
118 read with Section 139 of the Negotiable
Instruments Act, 1881, when once the negotiable
instrument has been marked in evidence, presumption
regarding its validity would arise and it is for the
accused to displace the said presumption. That in the
instant case, the respondent had sought to seek a
forensic opinion to compare the contents of the cheque
with the signature of the petitioner and the same was
wholly unnecessary having regard to the judgment of
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this Court.
5. In this regard our attention was drawn to paragraphs
32, 33, 34 and 36 of the judgment in Bir Singh, wherein
it has been observed that even if a blank cheque leaf is
voluntarily signed and handed over by the accused
towards some payment would attract the presumption
under Section 139 of the Act and in the absence of any
cogent evidence to show that the cheque was not
issued in discharge of the debt, the presumption would
hold good. The said paragraphs are extracted below:
"32. The proposition of law which emerges from the
judgments referred to above is that the onus to rebut
the presumption under Section 139 that the cheque has
been issued in discharge of a debt or liability is on the
accused and the fact that the cheque might be post-
dated does not absolve the drawer of a cheque of the
penal consequences of Section 138 of the Negotiable
Instruments Act.
33. A meaningful reading of the provisions of the
Negotiable Instruments Act including, in particular,
Sections 20, 87 and 139, makes it amply clear that a
person who signs a cheque and makes it over to the
payee remains liable unless he adduces evidence to
rebut the presumption that the cheque had been issued
for payment of a debt or in discharge of a liability. It is
immaterial that the cheque may have been filled in by
any person other than the drawer, if the cheque is duly
signed by the drawer. If the cheque is otherwise valid,
the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to
a payee, towards some payment, the payee may fill up
the amount and other particulars. This in itself would
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not invalidate the cheque. The onus would still be on
the accused to prove that the cheque was not in
discharge of a debt or liability by adducing evidence.
36. Even a blank cheque leaf, voluntarily signed and
handed over by the accused, which is towards some
payment, would attract presumption under Section 139
of the Negotiable Instruments Act, in the absence of
any cogent evidence to show that the cheque was not
issued in discharge of a debt."
9.1. It would be apposite to refer the decision in case of
Kalamani Tex vs. P. Balasubramanian, reported in (2021) 5
SCC 283, even otherwise signature is admitted and the
proceedings are governed by under Sections 118 and 139 of
the NI Act and the statutory presumptions are required to be
referred by the accused be leading the evidence based on
preponderance of probability, herein, defence is taken only
qua the body of the cheque, which is not filled up by the
present accused, for that also learned Revisional Court has
assigned the findings and reasons, once cheque is handed
over then it may be to the knowledge of the accused who
has filled up. Considering the fact that even otherwise blank
cheque is given, which gives authority to fill up and to
complete inquate offence under Section 20 of the NI Act
read with Section 87 of the NI Act to the holder of the
cheque to complete the instruments. In view of the said
arguments, it appears that the petition is devoid of merits
and required to be dismissed.
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9.2. Further, It would be apposite to refer Sections 20 and
87 of the N.I. Act, 1881, which reads thus :
"20. Inchoate stamped instruments.--
Where one person signs and delivers to another a paper
stamped in accordance with the law relating to
negotiable instruments then in force inIndia, and either
wholly blank or having written thereon an incomplete
negotiable instrument, he thereby gives prima facie
authority to the holder thereof to make or complete, as
the case may be, upon it a negotiable instrument, for
any amount specified therein and not exceeding the
amount covered by the stamp. The person so signing
shall be liable upon such instrument, in the capacity in
which he signed the same, to any holder in due course
for such amount; provided that no person other than a
holder in due course shall recover from the person
delivering the instrument anything in excess of the
amount intended by him to be paid thereunder.
87. Effect of material alteration.--
Any material alteration of a negotiable instrument
renders the same void as against any one who is a party
thereto at the time of making such alteration and does
not consent thereto, unless it was made in order to
carry out the common intention of the original
parties;Alteration by indorsee.--And any such
alteration, if made by an indorsee, discharges his
indorser from all liability to him in respect of the
consideration thereof.The provisions of this section are
subject to those of sections 20, 49, 86 and 125."
10. Learned advocate for the petitioner has further relied
on the aforesaid citations, which reads thus :
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(i) In case of T.Nagappa (supra), (2) G.L.H. 553, (ii) In case of
Shashikant Shamaldas Patel(supra), (iii) Elumalai (supra),
(iv) In case of Sakalabhaktula Vinod Kumar (supra) and (v) in
case of MIR Asif Ali & Ors. (supra).
11. It is needless to say that Criminal Case is required to be
decided on its own merits. Further, it would be apposite to
refer the decision of Hon'ble Apex Court in the case of
Parasa Raja Manikyala Rao And Anr vs State Of A.P
reported in AIR 2004 SC 132, wherein it has been observed
and held as under:
"...Each case, more particularly a criminal case
depends on its own facts and a close similarity
between one case and another is not enough to
warrant like treatment because a significant detail
may alter the entire aspect. In deciding such cases,
one should avoid the temptation to decide cases (as
said by Cordozo) by matching the colour of one case
against the colour of another. To decide therefore
on which side of the line a case falls, the broad
resemblance to another case is not at all decisive."
12. As discussed above in the earlier part of the judgment
that the signature is admitted and decree is passed and even
society is also registered under the Co-operative Societies
Act, it appears that this is not a private transactions. Even,
the decree is passed by the Competent Court which remain
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unchallenged and as per the decree, the Society has to
recover the amount of Rs.22 lakhs, though the impugned
cheque is issued only qua part consideration of Rs.12 lakhs.
Learned Revisional Court has taken the note of the aforesaid
fact also about the legally enforceable debt. In view of the
question of misuse of the cheque and misuse of the
instrument does not arise once signature is admitted and
even otherwise the law laid down by the Hon'ble Apex Court
in absence of any defence, if any argument canvassed by the
learned advocate for the petitioner by handwriting or any
others, then Court may take judicial notice and may compare
the signatures and the handwriting under Section 73 of the
Indian Evidence Act. In this regard, it would be apposite to
refer the decisions of the Hon'ble Apex Court in case of
Ajitsinh Chehuji Rathod vs. State of Gujarat reported in
2024 INSC 63, wherein it is observed and held as under in
paragraph No.15:
"15. Certified copy of a document issued by a Bank
is itself admissible under the Bankers' Books
Evidence Act, 1891 without any formal proof
thereof. Hence, in an appropriate case, the certified
copy of the specimen signature maintained by the
Bank can be procured with a request to the Court to
compare the same with the signature appearing on
the cheque by exercising powers under Section 73
of the Indian Evidence Act, 1872."
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13. In view of above, this Court is also of the considered
view that both the Courts below have rightly observed that
only with a view to adopt the dilatory tactics, the impugned
application was filed to send the cheque to the FSL and the
present petition is devoid of merits and came to be
dismissed. As discussed above, present petition is devoid of
merits and this Court is of the considered view that with a
view to adopt the dilatory tactics, the present petition is
filed.
14. In view of the above, the present petition deserves to
be dismissed and accordingly at admission stage. Rule is
discharged.
15. Learned Trial Court is directed to expedite the trial as
early possible, as per mandate of Section 143(3) of the NI
Act, from the date of receipt of the writ of the order.
Sd/-
(HASMUKH D. SUTHAR,J)
KUMAR ALOK
