Madras High Court
S.Praveenkumar vs Lenin on 22 December, 2021
Crl.R.C.No.801 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.12.2021
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.R.C.No.801 of 2021
S.Praveenkumar ... Petitioner
Vs.
Lenin ... Respondent
PRAYER: The Criminal Revision Petition is filed under Section 397 &
401 of the Code of Criminal Procedure, to set aside the order in
C.M.P.No.1945 of 2021, C.C.No.302 of 2018 dated 07.10.2021 on the
file of the Judicial Magistrate No.I, Namakkal.
For Petitioner : M/s.Divya Priya
For Respondent : Mr.J.Jayan
*****
ORDER
This Criminal Revision has been filed against the dismissal of the
petition passed by the Judicial Magistrate No.I, Namakkal in
C.M.P.No.1945 of 2021, C.C.No.302 of 2018, filed under Section 45
Indian Evidence Act, seeking to send the cheque for expert opinion.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
2. The petitioner is an accused in C.C.No.302 of 2018, pending
trial for the offence under Section 138 of Negotiable Instruments Act.
The petitioner had filed the petition under Section 45 of Indian Evidence
Act, in which, it has been stated that the complainant was examined in
Chief and documents have been marked on the side of the complainant.
Thereafter, one Raghu, S/o.,Karuppanan has been examined as defence
witness and three other witnesses have been summoned as defence
witnesses. The witnesses who have received the summons avoided to
appear before the Court, since they have colluded with the complainant.
The petitioner had further submitted that though the signature in the
cheque is admitted, the other entries in the cheque were not filled by him
and thereby, he had filed C.M.P.1945 of 2021 seeking to send the cheque
for expert opinion to prove that the entries were not made by the
petitioner/accused.
3. The respondent has filed a counter. In the counter, he had stated
that the accused had not sent any reply to the legal notice, denying that
the contents were not filled by him and that after cognizance, during the
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
initial questioning and during the time of questioning under Section
313(i) Cr.P.C, he had not stated anything with regard to the filling of the
contents by someone else and that the petition had been filed only to
protract the trial. Further, the respondent/complainant had also stated that
as per Section 20 of the N.I. Act, when the signature is admitted, it is
immaterial the entries are made by someone else.
4. The Trial Court after hearing both sides, by an order dated
07.10.2021 had dismissed the petition in C.M.P.No.1945 of 2021, against
which the present Revision has been filed.
5. Learned Counsel appearing for the petitioner/accused would
submit, admittedly, petitioner has signed the cheque, whereas the entries
in the cheque have been made by some one else. At the time of cross
examination, the petitioner had put a specific question to the respondent
that the signature and the entries were made by different pens and have
been entered by different persons and the question was denied by the
respondent/complainant and the respondent had specifically stated that
the entries have made by the accused himself and thereby, it is necessary
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
to prove that the entries were not made by the accused and the cheque
has to be sent for expert opinion.
6. He would further submit that the petitioner had filed the copies
of the receipts, Statement of Accounts, Offer and Joining Report,
Interview Guide and Request Form and the same have to be compared
with the entries made in the cheque so as to elicit that he has not filled
the cheque, whereas the Trial Court, without taking into consideration
that the burden is on the petitioner to rebut the statutory presumption by
letting in defence evidence had dismissed the petition and thereby, he
would seeks to set aside the order.
7. Per contra, the learned counsel for the respondent/complainant
would submit that in this case, the petitioner/accused had admitted to the
signature in the cheque, however, he had not sent any reply to the notice
stating that the entries in the cheque were made by someone else and not
by him. Further, at the stage of initial questioning and also at the time of
questioning under Section 313(i) Cr.P.C, the petitioner/accused has not
raised any objection or made any plea stating that the entries in the
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
cheque were not made by him and that it was made by some one else. He
would further submit that once the signature is admitted, Section 20 of
Negotiable Instruments Act comes into play and thereby the person so
signing shall be liable upon such instrument and it is immaterial that the
cheque has been filled by any person other than the drawer. Further, the
complainant in his cross examination, has admitted that the entries in the
cheque were made by one Venkatesh, who is the friend of the
petitioner/accused and in such case there is no requirement to send the
cheque for comparison of entries. Further, there is no mechanism or
expertise to find out the age of ink and more over the documents sought
to be compared were all xerox copies and the Trial Court had rightly
rendered a finding that the comparison cannot be done on the basis of
xerox copies and dismissed the same. There is no infirmity in the order.
8. In support of his contention, the learned counsel for the
respondent/complainant would rely on the judgment of the Hon'ble Apex
Court in the case of Bir Singh vs Mukesh Kumar reported in (2019) 4
SCC 197. He also relied on the Judgment of this Court in the case of
Uthirapathy Vs Balasubramanian, dated 11.11.2019 made in
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
Crl.R.C.No.1093 of 2019. He would submit that there is no infirmity or
error in the order of the Trial Court and the Trial Court finding that the
petition has been filed only to protract the trial, dismissed the same.
9. Heard the learned counsel and perused the materials available
on record.
10. The claim of the petitioner/accused is that though he has
signed the cheque and handed over it to the complainant/respondent, the
entries in the cheque were entered by someone else and not by him and
thereby, the petition had been filed seeking to send the cheque for expert
opinion to compare the entries in the cheque with the entries in the
following documents.
Sl.No. Name of the Document No. of sheets
1. Receipt copies (Mavericks Garden Preschool)
MAVGAR Education Pvt. Ltd.
2. Statement of Account-Indusland Bank
(Namakkal) 30-Jun-2017
3. Offer and Joining Report - IDP Education
India Pvt. Ltd.
4. Addendum and Relieving (Exit) Interview
Guide
5. Request (Job) forms - Mavericks Garden
preschool
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
11. Admittedly, in this case, the petitioner/accused has not sent any
reply to the legal notice stating that the entries in the cheque were made
by someone else, likewise, he had also not raised any such plea either at
the time of initial questioning or at the time of questioning under Section
313(i) Cr.P.C and only after examining one Raghu as defence side
witness, the petition had been filed seeking to send the entries in the
cheque for comparison for expert opinion. Further, it is the admitted case
of the respondent that the entries in the cheque were filled by one
Venkatesh known to the petitioner accused.
12. The Hon'ble Apex Court in Bir Singh vs Mukesh Kumar
(2019) 4SCC 197, has held as follows:
"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.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
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 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.
35. It is not the case of the respondent-accused that he
either signed the cheque or parted with it under any threat
or coercion. Nor is it the case of the respondent-accused
that the unfilled signed cheque had been stolen. The
existence of a fiduciary relationship between the payee of
a cheque and its drawer, would not disentitle the payee to
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
the benefit of the presumption under Section 139 of the
Negotiable Instruments Act, in the absence of evidence of
exercise of undue influence or coercion. The second
question is also answered in the negative.
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."
Further, this Court relying on the Judgment of Bir Singh cited
supra, had in Crl.R.C.No.1093 of 2019 (Uthirapathi Vs
V.Balasubramanian) dated 11.11.2019, has held as follows:-
"6. Per contra, the learned counsel for the
respondent / complainant would submit that in the case
referred to by the petitioner, the complainant had himself
agreed for sending the cheque for expert opinion whereas
the victims are concerned, complainant had objected for
sending the cheque for expert opinion. In this case the
petitioner/accused has admitted that having signed the
cheque and the petitioner having accepted the signature
in the cheque cannot now dispute that the cheques were
filled up by some one else. As per Section 20 of the
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
Negotiable Instrument Act the petitioner having signed
the cheque is liable upon such instrument in the capacity
in which he has signed the same. Further no plea had been
taken by the petitioner right from the beginning that he
has given a blank cheque. Further there is no mechanism
or expertise to find out the the age of the ink. He further
submitted that the petitioner had earlier approached this
Court by filing quash petition and this Court had dismissed
the petition directing the trial court to complete the trial
within the specified period. Only into to protract the
proceedings, the petition has been filed at the stage of
questioning under Section 313(i) of Cr.P.C. In support of
his contention he relied upon the judgment of this Court in
2018(3)MWN(cr.) DCC16 (Madras High Court)(Madurai
Bench) in the case of T.Mohanraj vs A.Britto Joy,
2018(3)MWN(Cr.)DCC40, wherein it is held as follows:
"Evidence Act, 1872, Section 45
Negotiable Instruments Act 1881, Section 138
and 139 Petition seeking Expert Opinion as to
age of ink used in signing cheque Dismissal
of ? Legality Age of Ink Ascertainment of No
facility or mechanism or expert available to
find out the age of the ink Decisions in
Nallathambi and Samsudeen relied upon
Prayer unworkable Case of complainant that
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
cheque signed and issued and issued in year
1992 Defence taken by Accused/Petitioner that
cheque filled up and misused in year 2011 In
absence of any facility to ascertain age of ink,
petitioner can rebut presumption by proving
his defense in any other method in accordance
with law Petitioner can also examine Bank
Officials to prove said fact.
He also relied on the judgement of this Court in the
case of (Madras High Court)(Madurai Bench) in the case
of C.Kannan vs V.Murugan, where in it is held as follows:
"Evidence Act 1872, Section 45 &73
Negotiable Instruments Act, 1881 Section 138,
Petition seeking Expert Opinion, Dismissal
Legality, Accused seeking to send cheque to
hand writing expert to compare signature with
other writings found in cheque and to find out
whether same written by accused No objection
raised regarding signature in particular ?
Court under Section 73 empowered to peruse
and compare dispute document with admitted
document PW1 already recalled for further
cross examination three times at instance of
accused petitioner trying to drag on
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
proceedings Impugned order of dismissal
upheld Revision petition dismissed."
He also relied on the Judgment of the Hon'ble Apex
Court in the case of Bir Singh vs Mukesh Kumar in
2019(1)MWN(Cr.) DCC164 (SC). The relevant para is
extracted herein under:
"Negotiable Instruments Act, 1881,
Sections 20,87 and 139 Blank/unfilled signed
cheques Filling up of by any person other than
drawer does not invalidate cheque Subsequent
filling up of unfilled signed cheques not an
alteration.
Para 37) A meaning 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 cheques and makes it over to the payee
remains liable unless he adduces evidence to
rebut the presumption that the cheques had
been issued for payment of a debt or in
discharge of a liability . It is immaterial that
the cheques 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
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
otherwise valid,the penal provisions of section
138 would be attracted .
13. In this case, as stated above, this Court is of the opinion that
the petitioner has not made out any case for sending the cheque for
expert opinion. This Court is of the further opinion that the petition has
been filed at the fag end only with an oblique motive to protract the
proceedings. I do not find any infirmity or error in the order passed by
the Trial Judge, the revision lacks merits and thereby stands dismissed.
22.12.2021
Index: Yes/No
Internet: Yes/No
ham
To
The Judicial Magistrate No.I,
Namakkal.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.801 of 2021
A.D.JAGADISH CHANDIRA,J.
ham
Crl.R.C.No.801 of 2021
22.12.2021
https://www.mhc.tn.gov.in/judis
