FILED BY: -

Sri. V. DEMUDU BABU

ADVOCATE
VIZIANAGARAM

IN THE HONOURBLE COURT OF THE

ADDL. JUDL. 1 ST CLASS MAGISTRATE
COURT AT VIZIANAGARAM

C. C. NO: / 2020

SWARN AFFIDAVIT FILED UNDER

SECTION 145 (2) OF THE N.I. ACT. BY
THE COMPLAINANT

FILED ON: 20 -04 -2020

FILED BY:-
 Sri. V. DEMUDU BABU
ADVOCATE
VIZIANAGARAM

IN THE HONOURABLE COURT OF THE

PRINCIPAL JUNIOR CIVIL JUDGE AT
VIZIANAGARAM

I.A.NO: /2020

IN

O. S. No: / 2020

PETITION FILED UNDER ORDER 38 RULE

5 R/W SECTION 151 OF C.P.C. BY THE
BY THE PETITINER / PLAINTIFF

FILED ON: 10 -07 -2020

FILED BY : -
 Sri. V. DEMUDU BABU
ADVOCATE
VIZIANAGARAM

IN THE HONOURABLE COURT OF

THE M.A.C.T - PRINCIPAL DISTRICT
JUDGE AT VIZIANAGARAM

M.O.P. NO: 361 / 2019

MEMO FILED ONBEHALF OF THE

PETITIONER

FILED ON: -04 -2020

FILED BY: -

V. DEMUDU BABU
ADVOCATE
VIZIANAGARAM
 IN THE HONOURABLE COURT OF
THE ADDL JUDL.1 ST CLASS
MAGISTRATE A.J.F.C.M COURT
AT VIZIANAGARAM

CRL.MP. NO:
/2020

C.C. NO:959/ 2017

PETITION FILED UNDER SECTION 70 (2)

OF CR.P.C.ON BEHALF OF THE PETITIONER
/ACCUSED

FILED ON: 24-02-

2020
cannot place heavy burden on
complainant in cases of S
138 of Negotiable Instruments
Act: SC
Shruti Mahajan July 22 2019

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The Supreme Court recently held that in cases concerning dishonour
of cheques under the Negotiable Instruments Act (NI Act), the burden
cannot be placed on the complainant to prove the existence of a debt.

The Bench of Justices L Nageswara Rao and Hemant Gupta upheld

a judgment of the Bombay High Court which had reversed the
acquittal of the accused on the ground that the Magistrate, while
dismissing the complaint, had not taken into consideration the
presumption provided for under the NI Act.

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Supreme Court of India
Basalingappa vs Mudibasappa on 9 April, 2019

Author: ......................J.
Bench: K Joseph, A Bhushan
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE
JURISDICTION
CRIMINAL APPEAL NO.636 of 2019
(arising out of SLP (Crl.) No.8641/2018)

BASALINGAPPA ...APPELLANT(S)

VERSUS

MUDIBASAPPA ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.
This is an appeal by accused challenging the judgment of the High
Court of Karnataka dated 04.07.2018 by which judgment the Criminal
Appeal filed by the complainant against the acquittal of the accused has
been allowed and the accused has been convicted under Section 138 of
the Negotiable Instruments Act, 1881 and sentenced to fine of
Rs.8,00,000/-, in default of which to undergo simple imprisonment for
three months.
2. The brief facts of the case for deciding the Signature Not Verified
appeal are:-Digitally signed by ARJUN BISHT Date: 2019.04.09
17:41:18 IST Reason:
2.1 The complainant gave a notice dated 12.03.2012 to the accused, the
appellant stating dishonour of cheque dated 27.02.2012 for an amount of
Rs.6,00,000/- for want of sufficient funds. Thereafter, on non-payment
of the amount, a complaint dated 25.04.2012 was filed by the
complainant under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as “Act, 1881). 2.2 Allegation in the complaint
was that the accused requested the complainant to lend a hand loan to
meet out urgent and family necessary for a sum of Rs.6,00,000/-.
Complainant lent hand loan of Rs.6,00,000/- dated 27.02.2012 in favour
of the accused. A cheque dated 27.02.2012 for Rs.6,00,000/- was given
by the accused, but the same was returned by the bank with the
endorsement “Funds Insufficient” on 01.03.2012. 2.3 After notice dated
12.03.2012, which was served on the accused on 13.03.2012, a
complaint was filed. PW1 filed his examination-in-chief and was also
cross- examined on behalf of the accused. The complainant in support of
the complaint filed original cheque dated 27.02.2012, original cheque
return memo dated 01.03.2012, office copy of the notice dated
12.03.2012, postal receipt dated 12.03.2012, acknowledgment letter
issued by the Department of Post dated 16.04.2012 and letter to Head
Post Office dated 11.04.2012. The accused in support of his defence
filed Ex.D1 – certified copy of plaint in O.S. No. 148 of 2011, Ex.D2-
Certified copy of the private complaint No.119/2012 in CC No. 2298 of
2012 and in Ext.D3, certified copy of registered sale agreement.2.4 The
trial court framed following two questions:-
1. Whether the complainant proves beyond all reasonable doubts that,
the accused had issued a cheque bearing No.839374 dated 27-02-2012
for Rs.6,00,000/- of Pragathi Gramin Bank, Nijalingappa Colony
Branch, Raichur in favour of complainant, towards discharge of legally
enforceable debt or liability and the same was dishonored for ‘ Funds
Insufficient’ and even after deemed legal notice the accused has not paid
the debt covered under the above said cheque and thereby committed an
offence punishable Under Section 138 of Negotiable Instruments Act?
2. What Order?
2.5 The trial court after considering the evidence and material on record
held that if the accused is able to raise a probable defense which creates
doubts about the existence of a legally enforceable debt or liability, the
prosecution can fail. By judgment dated 20.02.2015, the accused was
acquitted for the offence under Section
138. Complainant aggrieved by said  judgment filed a Criminal Appeal
under Section 378(4) of Code of Criminal Procedure. The High Court
set aside the judgment of the trial court and convicted the accused for
the offence under Section
138. Accused aggrieved by judgment of the High Court has come up in
this appeal.
3. Shri S.N. Bhat, learned counsel for the appellant submits that accused
has successfully rebutted the presumption under Section 139 and has
raised probable defence, which was accepted by the trial court after
considering the material on record. The High Court erred in setting aside
the acquittal order. The accused has questioned the financial capacity of
the complainant and without there being any proof of financial capacity,
the High Court erred in observing that judgment of the trial court is
perverse. It is submitted that burden of proof on accused under Section
138 is not a heavy burden as is on a prosecution to prove the offence
beyond reasonable doubt. It is submitted that the complainant being
a retired employee of Karnataka State Road Transport Corporation, who
having retired in 1977 and encashed his retirement benefits of
Rs.8,00,000/-, there was no financial capacity. It is submitted that
complainant has filed cases under Section 138 against other persons
also. Complainant had also made a payment of Rs.4,50,000/- for the
agreement of sale. The complainant was also a witness of a sale
agreement executed by accused, where he received an amount of Rs.15
lakhs as consideration. There was sufficient material on record to
discharge the burden and the High Court erred in setting aside the
acquittal order.
4. Learned counsel for the complainant refuting the submissions of the
learned counsel for the appellant contends that signature on the cheque
having been admitted by the accused, a presumption has rightly been
raised that cheque was given in discharge of a debt or liability. The
accused has not been able to prove any probable defence and the High
Court has rightly convicted the accused. No case was taken by the
accused that complainant has no other source of income. Learned
counsel for the complainant has relied on judgment of this Court in
Kishan Rao Vs. Shankargouda, (2018) 8 SCC 165.
5. We have considered the submissions of the counsel for the parties and
have perused the records.
6. To recapitulate facts again, the cheque dated 27.02.2012 was
presented for encashment by the complainant, which was returned on
01.03.2012. Signature on the cheque is not denied by the accused, due to
which presumption shall be raised that cheque was issued in discharge
of any debt or liability. The complainant gave his evidence to prove his
case. In the examination-in-chief, he stated that a loan of Rs.6,00,000/-
was a hand loan and in discharge of the same, the accused had given a
cheque dated 27.02.2012. Neither in the complaint nor in examination-
in-chief, complainant stated the date of giving the loan to the accused,
however, in his cross-examination, he stated that in the month of
November, 2011, accused availed loan of Rs.6,00,000/-. In cross-
examination, he further stated that except accused, he has not lent loan
to any other person. He denied having filed a suit for recovery of money
against one Balana Gouda. However, he admitted that suit was filed on
the basis of promissory note with interest at the rate of @18% per
month. He further admitted that he has filed a criminal case
under Section 138 of Negotiable Instruments Act, 1881 against one
Siddesh bearing CC No.2298 of 2012. When a suggestion was given
that the complainant had lent Rs.25,000/- to the accused, he said that he
does not remember the accused has borrowed Rs.25,000/- from him. In
his cross- examination, he has admitted that he has signed as a witness
to the agreement to transfer the lease hold rights of accused in favour of
one M/s. Sri Lakshmi Narasimha Industries. Further on question,
whether the accused received Rs.15 lakhs from the said transaction, he
showed his ignorance. Suggestion was also put that a blank cheque was
issued at the time of loan availing of Rs.25,000/-. Suggestion was
also put in his cross-examination that he was not having Rs.6,00,000/-
on hand on the date of loan.
7. Now, we look into the facts alleged by the defence. In the cross-
examination, although complainant denied that he has filed any case
under Section 138 against any person but Ex.D2 is certified copy of the
complaint filed by the complainant against Shri Siddesh under Section
138 of Act, 1881 for punishing the accused. Further the date of cheque,
which was alleged to be issued by Shri Siddesh was also 27.02.2012.
Ex.D3 was an agreement of sale dated 07.01.2010, by which the
complainant paid Rs.4,50,000/- to Balana Gouda towards sale
consideration. In document transferring the leasehold rights by the
accused to one M/s. Sri Lakshmi Narasimha Industries, the complainant
was a witness, who admitted his signature on the deed. In his cross-
examination, accused case was that by virtue of such transfer of
leasehold rights, he received Rs.15 lakhs. The trial court
after marshalling the evidence made following observations in
Paragraph No.17:-
“17. In the instant case the cheque amount involved is Rs.6,00,000/- and
the complainant is an retired bus conductor and he had retired from
service in the year 1997 and has received the entire retirement monetary
benefits of Rs.8,00,000/- and the same was deposited in the account of
the complainant and it was encashed by the complainant. It is observed
that the complainant is silent as to his source of income at present. He
has nowhere specified as to what is he working and his earning, to show
his position to lend the amount as specified in the cheque. There is no
single document to show his earning nor has the complainant executed
any document for having lent such heavy amount of Rs.6,00,000/- to the
accused. Further, it is the suggestion of the accused to PW-1 that, the
accused by transferring his interest to lease hold to one M/s.
Sri.Lakshmi Narasimha industries has received a sum of Rs.15,00,000/-
and it is also admitted by PW-1 that he was the witness to the said
transaction. From the above, it raises doubt on the very cheque Ex.P-1
held by the complainant and the non- production of any document by
the complainant to 18 C.C.NO.2675-2012 show his earning, and the
complainant has not executed any document before lending such huge
amount to the accused. Such circumstance raises serious doubt on the
transaction as claimed by the complainant.
Hon’ble High Court of Karnataka has clearly established that, the
accused need not enter the witness box and rebut the presumptions. I am
of the opinion that the whole transaction is at a doubt and the
circumstance does not give rise to the lending of loan amount of
Rs.6,00,000/- as claimed by the complainant. Accordingly, Points No.1
in the Negative.”
8. We having noticed the facts of the case and the evidence on the
record, we need to note the legal principles regarding nature of
presumptions to be drawn under Section 139 of the Act and the manner
in which it can be rebutted by an accused. We need to look into the
relevant judgments of this Court, where these aspects have been
considered and elaborated. Chapter XIII of the Act, 1881 contains a
heading “Special Rules of Evidence”. Section 118 provides for
presumptions as to negotiable instruments. Section 118 is as follows:-
“118. Presumptions as to negotiable instruments. —Until the contrary is
proved, the following presumptions shall be made:—
(a) of consideration —that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when it has
been accepted, indorsed, negotiated or transferred, was accepted,
indorsed, negotiated or transferred for consideration;
(b) as to date —that every negotiable instrument bearing a date was
made or drawn on such date;
XXXXXXXXXXXXXXXXXXXXXXX”
9. Next provision, which needs to be noticed is Section 139, which
provides for presumption in favour of holder. Section 139 lays down:-
“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.”
10. The complainant being holder of cheque and the signature on the
cheque having not been denied by the accused, presumption shall be
drawn that cheque was issued for the discharge of any debt or other
liability. The presumption under Section 139 is a rebuttable
presumption. Before we refer to judgments of this Court
considering Sections 118 and 139, it is relevant to notice the general
principles pertaining to burden of proof on an accused especially in a
case where some statutory presumption regarding guilt of the accused
has to be drawn. A Three-Judge Bench of this Court in Kali Ram Vs.
State of Himachal Pradesh, (1973) 2 SCC 808 laid down following:-
“23. ……………………One of the cardinal principles which has
always to be kept in view in our system of administration of justice for
criminal cases is that a person arraigned as an accused is presumed to be
innocent unless that presumption is rebutted by the prosecution by
production of evidence as may show him to be guilty of the offence with
which he is charged. The burden of proving the guilt of the accused is
upon the prosecution and unless it relieves itself of that burden, the
courts cannot record a finding of the guilt of the accused. There are
certain cases in which statutory presumptions arise regarding the guilt of
the accused, but the burden even in those cases is upon the prosecution
to prove the existence of facts which have to be present before the
presumption can be drawn. Once those facts are shown by the
prosecution to exist, the Court can raise the statutory presumption and it
would, in such an event, be for the accused to rebut the presumption.
The onus even in such cases upon the accused is not as heavy as is
normally upon the prosecution to prove the guilt of the accused. If some
material is brought on the record consistent with the innocence of the
accused which may reasonably be true, even though it is not positively
proved to be true, the accused would be entitled to acquittal.”
11. This Court in Bharat Barrel & Drum Manufacturing Company Vs.
Amin Chand Pyarelal, (1999) 3 SCC 35 had occasion to
consider Section 118(a) of the Act. This Court held that once execution
of the promissory note is admitted, the presumption under Section
118(a) would arise that it is supported by a consideration. Such a
presumption is rebuttable and defendant can prove the non-existence of
a consideration by raising a probable defence. In paragraph No.12
following has been laid down:-
“12. Upon consideration of various judgments as noted hereinabove, the
position of law which emerges is that once execution of the promissory
note is admitted, the presumption under Section 118(a) would arise that
it is supported by a consideration. Such a presumption is rebuttable. The
defendant can prove the non-existence of a consideration by raising a
probable defence. If the defendant is proved to have discharged the
initial onus of proof showing that the existence of consideration was
improbable or doubtful or the same was illegal, the onus would shift to
the plaintiff who will be obliged to prove it as a matter of fact and upon
its failure to prove would disentitle him to the grant of relief on the basis
of the negotiable instrument. The burden upon the defendant of proving
the non-existence of the consideration can be either direct or by bringing
on record the preponderance of probabilities by reference to the
circumstances upon which he relies. In such an event, the plaintiff is
entitled under law to rely upon all the evidence led in the case including
that of the plaintiff as well. In case, where the defendant fails to
discharge the initial onus of proof by showing the non-existence of
the consideration, the plaintiff would invariably be held entitled to the
benefit of presumption arising under Section 118(a) in his favour. The
court may not insist upon the defendant to disprove the existence of
consideration by leading direct evidence as the existence of negative
evidence is neither possible nor contemplated and even if led, is to be
seen with a doubt. The bare denial of the passing of the consideration
apparently does not appear to be any defence. Something which is
probable has to be brought on record for getting the benefit of shifting
the onus of proving to the plaintiff. To disprove the presumption, the
defendant has to bring on record such facts and circumstances upon
consideration of which the court may either believe that the
consideration did not exist or its non- existence was so probable that a
prudent man would, under the circumstances of the case, shall act upon
the plea that it did not exist……”
12. Justice S.B. Sinha in M.S. Narayana Menon Alias Mani Vs. State of
Kerala and Another, (2006) 6 SCC 39 had considered Sections
118(a), 138 and 139 of the Act, 1881. It was held that presumptions both
under Sections 118(a) and 139 are rebuttable in nature. Explaining the
expressions “may presume” and “shall presume” referring to an earlier
judgment, following was held in paragraph No.28:-
“28. What would be the effect of the expressions “may presume”, ‘shall
presume”  and “conclusive proof” has been considered by this Court
in Union of India v. Pramod Gupta, (2005) 12 SCC 1, in the following
terms: (SCC pp. 30-31, para 52) “It is true that the legislature used two
different phraseologies ‘shall be presumed’ and ‘may be presumed’ in
Section 42 of the Punjab Land Revenue Act and furthermore although
provided for the mode and manner of rebuttal of such presumption as
regards the right to mines and minerals said to be vested in the
Government vis-à-vis the absence thereof in relation to the lands
presumed to be retained by the landowners but the same would not
mean that the words ‘shall presume’ would be conclusive. The meaning
of the expressions ‘may presume’ and ‘shall presume’ have been
explained in Section 4 of the Evidence Act, 1872, from a perusal
whereof it would be evident that whenever it is directed that the court
shall presume a fact it shall regard such fact as proved unless disproved.
In terms of the said provision, thus, the expression ‘shall presume’
cannot be held to be synonymous with ‘conclusive proof’.”
13. It was noted that the expression “shall presume” cannot be held to be
synonymous with conclusive proof. Referring to definition of words
“proved” and “disproved” under Section 3 of the Evidence Act,
following was laid down in paragraph No.30: 
“30. Applying the said definitions of “proved” or “disproved” to the
principle behind Section 118(a) of the Act, the court shall presume a
negotiable instrument to be for consideration unless and until after
considering the matter before it, it either believes that the consideration
does not exist or considers the non-existence of the consideration so
probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that the consideration does
not exist. For rebutting such presumption, what is needed is to raise a
probable defence. Even for the said purpose, the evidence adduced on
behalf of the complainant could be relied upon.”
14. This Court held that what is needed is to raise a probable defence,
for which it is not necessary for the accused to disprove the existence of
consideration by way of direct evidence and even the evidence adduced
on behalf of the complainant can be relied upon. Dealing with standard
of proof, following was observed in paragraph No.32:-
“32. The standard of proof evidently is preponderance of probabilities.
Inference of preponderance of probabilities can be drawn not only from
the materials on record but also by reference to the circumstances upon
which he relies.”
15. In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, (2008) 4 SCC
54, this Court held that an accused for discharging the burden of proof
placed upon him under a statute need not examine himself. He may
discharge his burden on the basis of the materials already brought on
record. Following was laid down in Paragraph No.32:-
“32. An accused for discharging the burden of proof placed upon him
under a statute need not examine himself. He may discharge his burden
on the basis of the materials already brought on record. An accused has
a constitutional right to maintain silence. Standard of proof on the part
of an accused and that of the prosecution in a criminal case is different.”
16. This Court again reiterated that whereas prosecution must prove the
guilt of an accused beyond all reasonable doubt, the standard of proof so
as to prove a defence on the part of an accused is “preponderance of
probabilities”. In paragraph No.34, following was laid down:-
“34. Furthermore, whereas prosecution must prove the guilt of an
accused beyond all reasonable doubt, the standard of proof so as to
prove a defence on the part of an accused is “preponderance of
probabilities”. Inference of preponderance  of probabilities can be drawn
not only from the materials brought on record by the parties but also by
reference to the circumstances upon which he relies.”
17. In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, this
Court again examined as to when complainant discharges the burden to
prove that instrument was executed and when the burden shall be
shifted. In paragraph Nos. 18 to 20, following has been laid down:-
“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. ……………………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
non-existence 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……………”
18. A Three-Judge Bench of this Court in Rangappa Vs. Sri Mohan,
(2010) 11 SCC 441 had occasion to elaborately consider provisions of
Sections 138 and
139. In the above case, trial court had acquitted the accused in a case
relating to dishonour of cheque under Section 138. The High Court had
reversed the judgment of the trial court convicting the accused. In the
above case, the accused had admitted signatures on the cheque. This
Court held that where the fact of signature on the cheque is
acknowledged, a presumption has to be raised that the cheque pertained
to a legally enforceable debt or liability, however, this presumption is of
a rebuttal nature and the onus is then on the accused to raise a probable
defence. In Paragraph No.13, following has been laid down:-
“13. The High Court in its order noted that in the course of the trial
proceedings, the accused had admitted that the signature on the
impugned cheque (No. 0886322 dated 8-2-
2001) was indeed his own. Once this fact has been
acknowledged, Section 139 of the Act mandates a presumption that the
cheque pertained to a legally enforceable debt or liability. This
presumption is of a rebuttal nature and the onus is then on the  accused
to raise a probable defense. With regard to the present facts, the High
Court found that the defence raised by the accused was not probable.”
19. After referring to various other judgments of this Court, this Court in
that case held that the presumption mandated by Section 139 of the Act
does indeed include the existence of a legally enforceable debt or
liability, which, of course, is in the nature of a rebuttable presumption.
In paragraph No.26, following was laid down:-
“26. In light of these extracts, we are in agreement with the respondent
claimant that the presumption mandated by Section 139 of the Act does
indeed include the existence of a legally enforceable debt or liability. To
that extent, the impugned observations in Krishna Janardhan Bhat,
(2008) 4 SCC 54 may not be correct. However, this does not in any way
cast doubt on the correctness of the decision in that case since it was
based on the specific facts and circumstances therein. As noted in the
citations, this is of course in the nature of a rebuttable presumption and
it is open to the accused to raise a defence wherein the existence of a
legally enforceable debt or liability can be contested. However, there
can be no doubt that there is an initial presumption which favours the
complainant.”20. Elaborating further, this Court held that Section 139 of
the Act is an example of a reverse onus and the test of proportionality
should guide the construction and interpretation of reverse onus clauses
on the defendant-accused and the defendant- accused cannot be
expected to discharge an unduly high standard of proof. In paragraph
Nos. 27 and 28, following was laid down:-
“27. Section 139 of the Act is an example of a reverse onus clause that
has been included in furtherance of the legislative objective of
improving the credibility of negotiable instruments. While Section
138 of the Act specifies a strong criminal remedy in relation to the
dishonour of cheques, the rebuttable presumption under Section 139 is a
device to prevent undue delay in the course of litigation. However, it
must be remembered that the offence made punishable by Section
138 can be better described as a regulatory offence since the bouncing
of a cheque is largely in the nature of a civil wrong whose impact is
usually confined to the private parties involved in commercial
transactions. In such a scenario, the test of proportionality should guide
the construction and interpretation of reverse onus clauses and the
defendant-accused cannot be expected to discharge an unduly high
standard of proof.
28. In the absence of compelling
justifications, reverse onus clauses
usually impose an evidentiary burden and  not a persuasive burden.
Keeping this in view, it is a settled position that when an accused has to
rebut the presumption under Section 139, the standard of proof for doing
so is that of “preponderance of probabilities”. Therefore, if the accused
is able to raise a probable defence which creates doubts about the
existence of a legally enforceable debt or liability, the prosecution can
fail. As clarified in the citations, the accused can rely on the materials
submitted by the complainant in order to raise such a defence and it is
conceivable that in some cases the accused may not need to adduce
evidence of his/her own.”
21. We may now notice judgment relied by the learned counsel for the
complainant, i.e., judgment of this Court in Kishan Rao Vs.
Shankargouda, (2018) 8 SCC
165. This Court in the above case has examined Section 139 of the Act.
In the above case, the only defence which was taken by the accused was
that cheque was stolen by the appellant. The said defence was rejected
by the trial court. In paragraph Nos. 21 to 23, following was laid down:-
“21. In the present case, the trial court as well as the appellate court
having found that cheque contained the signatures of the accused and it
was given to the appellant to present in the Bank, 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.
22. Another judgment which needs to be looked into is Rangappa v. Sri
Mohan (2010) 11 SCC 441. A three-Judge Bench of this Court had
occasion to examine the presumption under Section 139 of the 1881
Act. This Court in the aforesaid case has held that in the event the
accused is able to raise a probable defence which creates doubt with
regard to the existence of a debt or liability, the presumption may fail.
Following was laid down in paras 26 and 27: (SCC pp. 453-54) “26. In
light of these extracts, we are in agreement with the respondent claimant
that the presumption mandated by Section 139 of the Act does indeed
include the existence of a legally enforceable debt or liability. To that
extent, the impugned observations in Krishna Janardhan Bhat, may not
be correct. However, this does not in any way cast doubt on the
correctness of the decision in that case since it was based on the specific
facts and circumstances therein. As noted in the citations, this is of
course in the nature of a rebuttable presumption and it is open to the
accused to raise a defence wherein the existence of a legally enforceable
debt or liability can be contested. However, there can be no doubt that
there is an initial presumption which favours the complainant.
27. Section 139 of the Act is an example of a reverse onus clause that
has been included in furtherance of the legislative objective of
improving the credibility of negotiable instruments. While Section
138 of the Act specifies a strong criminal remedy in relation to the
dishonour of cheques, the rebuttable presumption under Section 139 is a
device to prevent undue delay in the course of litigation. However, it
must be remembered that the offence made punishable by Section
138 can be better described as a regulatory offence since the bouncing
of a cheque is largely in the nature of a civil wrong whose impact is
usually confined to the private parties involved in commercial
transactions. In such a scenario, the test of proportionality should guide
the construction and interpretation of reverse onus clauses and the
defendant-accused cannot be expected to discharge an unduly high
standard of proof.”
23. No evidence was led by the accused. The defence taken in the reply
to the notice that cheque was stolen having been rejected by the two
courts below, we do not see any basis for the High Court coming to the
conclusion that the accused has been successful in creating doubt in the
mind of the Court with regard to the existence of the debt or liability.
How the presumption  under Section 139 can be rebutted on the
evidence of PW 1, himself has not been explained by the High Court.
22. The above case was a case where this Court did not find the defence
raised by the accused probable. The only defence raised was that cheque
was stolen having been rejected by the trial court and no contrary
opinion having been expressed by the High Court, this Court reversed
the judgment of the High Court restoring the conviction. The respondent
cannot take any benefit of the said judgment, which was on its own
facts.
23. We having noticed the ratio laid down by this Court in above cases
on Sections 118(a) and 139, we now summarise the principles
enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act
mandates a presumption that the cheque was for the discharge of any
debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and
the onus is on the accused to raise the probable defence. The standard of
proof for rebutting the presumption is that of preponderance of
probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on
evidence led by him or accused can also rely on the materials submitted
by the complainant in order to raise a probable defence. Inference of
preponderance of probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to the
circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box
in support of his defence, Section  139 imposed an evidentiary burden
and not a persuasive burden.
(v) It is not necessary for the accused to come in the
witness box to support his defence.

24. Applying the preposition of law as noted above, in facts of the

present case, it is clear that signature on cheque having been admitted, a
presumption shall be raised under Section 139 that cheque was issued in
discharge of debt or liability. The question to be looked into is as to
whether any probable defence was raised by the accused. In cross-
examination of the PW1, when the specific question was put that cheque
was issued in relation to loan of Rs.25,000/- taken by the accused, the
PW1 said that he does not remember. PW1 in his evidence admitted that
he retired in 1997 on which date he received monetary benefit of Rs. 8
lakhs, which was encashed by the complainant. It was also brought in
the evidence that in the year 2010, the complainant entered into a sale
agreement for which he paid anamount of Rs.4,50,000/- to Balana
Gouda towards sale consideration. Payment of Rs.4,50,000/- being
admitted in the year 2010 and further payment of loan of Rs.50,000/-
with regard to which complaint No.119 of 2012 was filed by the
complainant, copy of which complaint was also filed as Ex.D2, there
was burden on the complainant to prove his financial capacity. In the
year 2010-2011, as per own case of the complainant, he made payment
of Rs.18 lakhs. During his cross-examination, when financial capacity to
pay Rs.6 lakhs to the accused was questioned, there was no satisfactory
reply given by the complainant. The evidence on record, thus, is a
probable defence on behalf of the accused, which shifted the burden on
the complainant to prove his financial capacity and other facts.
25. There was another evidence on the record, i.e., copy of plaint in O.S.
No. 148 of 2011 filed by the complainant for recovery of loan of Rs. 7
lakhs given to one Balana Gouda in December, 2009. Thus, there was
evidence on record to indicate that in December, 2009, he gave Rs.7
lakhs in sale agreement, in 2010, he made payment of Rs.4,50,000/-
towards sale consideration and further he gave a loan of Rs.50,000/- for
which complaint was filed in 2012 and further loan of Rs.6 lakhs in
November, 2011. Thus, during the period from 2009 to November,
2011, amount of Rs.18 lakhs was given by the complainant to different
persons including the accused, which put a heavy burden to prove the
financial capacity when it was questioned on behalf of the accused, the
accused being a retired employee of State Transport Corporation, who
retired in 1997 and total retirement benefits, which were encashed were
Rs.8 lakhs only. The High Court observed that though the complainant
is retired employee, the accused did not even suggest that pension is the
only means for survival of the complainant. Following observations
were made in Paragraph 16 of the judgment of the High Court:-
“16. Though the complainant is retired employee, the accused did not
even suggest that pension is the only means for survival of the
complainant. Under these circumstances, the Trial Court’s finding that
the complainant failed to discharge his initial burden of proof of lending
capacity is perverse.”
26. There is one more aspect of the matter which also needs to be
noticed. In the complaint filed by the complainant as well as in
examination-in-chief the complainant has not mentioned as to on which
date, the loan of Rs.6 lakhs was given to the accused. It was during
cross-examination, he gave the date as November, 2011. Under Section
118(b), a presumption shall be made as to date that every negotiable
instrument was made or drawn on such date. Admittedly, the cheque is
dated 27.02.2012, there is not even a suggestion by the complainant that
a post dated cheque was given to him in November, 2011 bearing dated
27.02.2012. Giving of a cheque on 27.02.2012, which was deposited on
01.03.2012 is not compatible with the case of the complainant when we
read the complaint submitted by the complainant especially Para 1 of
the complaint, which is extracted as below:-
“1. The accused is a very good friend of the complainant. The accused
requested the Complainant a hand loan to meet out urgent and family
necessary a sum of Rs.6,00,000/-
(Rupees Six Lakh) and on account of long standing friendship and
knowing the difficulties, which is being faced by the  accused the
complainant agreed to lend hand loan to meet out the financial
difficulties of the accused and accordingly the Complainant lend hand
loan Rs.6,00,000/- (Rupees Six Lakh) dated 27.02.2012 in favour of the
Complainant stating that on its presentation it will be honored. But to
the surprise of the Complainant on presentation of the same for
collection through his Bank the Cheque was returned by the Bank with
an endorsement “Funds Insufficient” on 01-03- 2012.”
27. Thus, there is a contradiction in what was initially stated by the
complainant in the complaint and in his examination-in-chief regarding
date on which loan was given on one side and what was said in cross-
examination in other side, which has not been satisfactorily explained.
The High Court was unduly influenced by the fact that the accused did
not reply the notice denying the execution of cheque or legal liability.
Even before the trial court, appellant- accused has not denied his
signature on the cheque.
28. We are of the view that when evidence was led before the Court to
indicate that apart from loan of Rs.6 lakhs given to the accused, within
02 years, amount of Rs.18 lakhs have been given out by the complainant
and his financial capacity being questioned, it was incumbent on the
complainant to have explained his financial capacity. Court cannot insist
on a person to lead negative evidence. The observation of the High
Court that trial court’s finding that the complainant failed to prove his
financial capacity of lending money is perverse cannot be supported.
We fail to see that how the trial court’s findings can be termed as
perverse by the High Court when it was based on consideration of the
evidence, which was led on behalf of the defence. This Court had
occasion to consider the expression “perverse” in Gamini Bala
Koteswara Rao and others Vs. State of Andhra Pradesh through
Secretary, (2009) 10 SCC 636, this Court held that although High Court
can reappraise the evidence and conclusions drawn by the trial court but
judgment of acquittal can be interfered with only judgment is against the
weight of evidence. In Paragraph No.14 following has been held:-
“14. We have considered the arguments advanced and heard the matter
at great length. It is true, as contended by Mr Rao, that interference in an
appeal against an  acquittal recorded by the trial court should be rare and
in exceptional circumstances. It is, however, well settled by now that it
is open to the High Court to reappraise the evidence and conclusions
drawn by the trial court but only in a case when the judgment of the trial
court is stated to be perverse. The word “perverse” in terms as
understood in law has been defined to mean “against the weight of
evidence”. We have to see accordingly as to whether the judgment of
the trial court which has been found perverse by the High Court was in
fact so.”
29. High Court without discarding the evidence, which was led by
defence could not have held that finding of trial court regarding
financial capacity of the complainant is perverse. We are, thus, satisfied
that accused has raised a probable defence and the findings of the trial
court that complainant failed to prove his financial capacity are based on
evidence led by the defence. The observations of the High Court that
findings of the trial court are perverse are unsustainable. We, thus, are
of the view that judgment of the High Court is unsustainable.
30. In result, the appeal is allowed and the judgment of the High Court
is set aside and that of the trial court is restored.
......................J.
(ASHOK BHUSHAN ) ......................J.
(K.M. JOSEPH ) New Delhi, April 09, 2019.

S.No.130 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CRM-
M-30633 of 2019 (O&M) Date of Decision:19.07.2019 Sukhjinder Singh .....Petitioner
Vs. Buta Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE RAJBIR SEHRAWAT
Present:- Mr. H.S. Bhullar, Advocate for the petitioner. **** Rajbir Sehrawat, J.(Oral)
This is a petition challenging the order dated 29.01.2019 passed by Judicial Magistrate
Ist Class, Faridkot; dismissing the application of the petitioner/ accused for taking his
own specimen handwriting for comparison of the same with the writing on the body of
the cheque involved the complaint; and the order dated 02.07.2019 (Annexure P-4)
passed by Additional Sessions Judge Faridkot, thereby dismissing the revision petition
against the above said order of the trial Court. The facts giving rise to the present
petition are that the petitioner had given a cheque to the complainant; which the
complainant claims to be received in discharge of enforceable liability of the
petitioner. The said cheque was defaulted in payment. Therefore, the complainant had
preferred a complaint against the petitioner under Section 138 of NI Act The
complainant completed his evidence. At the stage of starting of the defence evidence,
the petitioner/ accused has taken a plea that the cheque in question, though
undisputedly signed by him, however, was not `drawn' by him; because he had not
filled up the body of the cheque. To prove this fact, the petitioner/ accused moved an
application before the trial Court for sending his sample handwriting to the expert for
comparison of the same CRM-M-30633 of 2019 (O&M) -2- with the writing found in
the body of the cheque. That application was declined by the trial Court vide the
above said order dated 29.01.2019. Aggrieved against the order of the trial court, the
petitioner/ accused preferred the revision petition before the Court of Additional
Sessions Judge, Faridkot. However, the same was also declined by the Additional
Sessions Judge; vide order dated 02.07.2019. While dismissing the revision petition,
the Revisional Court observed that the accused want to plead that it is not he, who
filled up the body of the cheque; rather it is the complainant who filled up the cheque.
However, the complainant has not even claimed in the complaint that the accused
filled up the cheque. Rather it is the positive case of the complainant that when the
cheque was sought to be handed over to the complainant, at that time, the body of
the cheque was already filled up, however, the signature of the accused/ petitioner
was not there. Therefore, the petitioner/accused was asked to put his signatures; so as
to complete the cheque. Accordingly, the petitioner/ accused put the signatures on
the cheque in the presence of the complainant and, thereafter, handed over the same
to him. Still further, it was observed by the trial Court that signatures on the cheque
are not even disputed by the petitioner. Accordingly, the Revisional Court held that
even as per the law, it is not necessary that body of the cheque in question must have
been filled by the accused/drawer himself. The body of the cheque could have been
filed up by anybody. Therefore, this fact is; otherwise also; irrelevant. While arguing
the case, learned counsel for the petitioner has submitted that the petitioner/ accused
has taken a plea that he has not drawn the cheque. Drawing of the cheque means
completing all parts of the cheque by the petitioner/drawer himself. The petitioner
could have filled up CRM-M-30633 of 2019 (O&M) -3- the cheque himself or it should
be filled up in his presence or with his consent. It is further submitted that since the
accused/ petitioner is leading evidence in his defence, therefore, it is for the petitioner
to chose the mode of proof of a fact. Since the petitioner is to rebut the presumption,
therefore he can prove that he had not `drawn' the cheque. Hence, the Courts below
should have allowed the application and thereby, should have permitted the
comparison of writing on the body of the cheque with the handwriting of the
petitioner. To support his contention, that cheque cannot be taken as `drawn' by the
accused if it is not filled up by him, counsel for the petitioner has relied upon judgment
of Orissa High Court in M/s Surveka Distributors Pvt. Ltd and others v. M/s S.R. Retail
Zone Pvt. Ltd., 2018 (5) R.C.R. (Criminal) 317 and a judgment of Kerala High Court in C.
Santhi v. Mary Sherly, 2011(4) R.C.R. (Criminal) 94. Having heard learned counsel for
the petitioner and having perused the file, this Court does not find substance in the
argument of the learned counsel for the petitioner. In the present case, the petitioner
has not even disputed his signatures on the cheque. Therefore, the only attempt which
is being made by the petitioner is that he wants to prove the nonexistence of the
consent of the petitioner qua drawing of the cheque by asserting the fact that body of
the cheque was not filled up by the petitioner/ accused. However, it is not even
disputed by the petitioner that the cheque which is on the Court file is complete in all
respects, containing all the necessary particulars meant for a cheque. Therefore, in
considered opinion of this Court, even if the Court would have acceded to the request
of the petitioner and sent the cheque for comparison of the handwriting of the
petitioner; and in an extreme case, even if the report would have come to CRM-M-
30633 of 2019 (O&M) -4- the effect that the body of the cheque is not filled up by the
petitioner; still it would not have proved the fact that the cheque was not issued or
drawn by the petitioner or with his consent. It is nowhere provided under any law that
a cheque would be a valid instrument only if all parts of the same are filled up by the
drawer or the holder of the account himself or in his own handwriting. The petitioner
could have, very well, got it filled up from anybody at his choice. Therefore, the fact
that the body of the cheque might have been in a handwriting different than the
signatures of the petitioner is totally irrelevant; for the purpose of offence under
Section 138 of NI Act. For proving offence under Section 138 of NI Act against an
accused, the complainant is not required by law to prove that body of cheque was
filled up by the accused himself or even with his consent. Therefore, any report qua
writing in the body of the cheque would not have rebutted any `presumption', as
claimed by the accused/ petitioner. Even otherwise, the provisions of Negotiable
Instruments Act do not contemplate the fact that body of the cheque should be filled
up by the drawer of the cheque himself. Rather, the provisions speak only qua the
signatures of the drawer being present on the cheque/bill of exchange. It is
appropriate to have reference to provisions of the Act in this regard. Sections 5 and 6
of the Negotiable Instruments Act, 1881 read as under:- “5. “Bill of exchange”.- A “bill
of exchange” is an instrument in writing containing an unconditional order, signed by
the maker, directing a certain person to pay a certain sum of money only to, or to the
order of, a certain person or to the bearer of the instrument. A promise or order to
pay is not “conditional”, within the CRM-M-30633 of 2019 (O&M) -5- meaning of this
section and section 4, by reason of the time for payment of the amount or any
instalment thereof being expressed to be on the lapse of a certain period after the
occurrence of a specified event which, according to the ordinary expectation of
mankind, is certain to happen, although the time of its happening may be uncertain.
The sum payable may be “certain”, within the meaning of this section and section 4,
although it includes future interest or is payable at an indicated rate of exchange, or is
according to the course of exchange, and although the instrument provides that, on
default of payment of an instalment, the balance unpaid shall become due. The person
to whom it is clear that the direction is given or that payment is to be made may be a
“certain person”, within the meaning of this section and section 4, although he is
misnamed or designated by description only. 6. “Cheque”.- A “cheque” is a bill of
exchange drawn on a specified banker and not expressed to be payable otherwise
than on demand and it includes the electronic image of a truncated cheque and a
cheque in the electronic form. Explanation 1.- For the purpose of this section, the
expressions-- (a) “a cheque in the electronic form” means a cheque drawn in
electronic form by using any computer resource and signed in a secure system with
digital signature (with or without biometrics signature) and asymmetric crypto CRM-
M-30633 of 2019 (O&M) -6- system or with electronic signature, as the case may be;]
(b) “a truncated cheque” means a cheque which is truncated during the course of a
clearing cycle, either by the clearing house or by the bank whether paying or receiving
payment, immediately on generation of an electronic image for transmission,
substituting the further physical movement of the cheque in writing. Explanation II.--
For the purpose of this section, the expression “clearing house” means the clearing
house managed by the Reserve Bank of India or a clearing house recognised as such by
the Reserve Bank of India.] [Explanation III.--For the purposes of this section, the
expressions “asymmetric crypto system”, “computer resource”, “digital signature”,
“electronic form” and “electronic signature” shall have the same meanings
respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).] A
bare perusal of the above provisions show that every cheque is a bill of exchange of a
particular kind. Section 6 of the Act also prescribes that the `cheque' can be in
electronic form as well. However, while extending the scope of the definition of the
cheque to the digital format, the Act has again emphasised upon the `signature' of the
drawer, though in the digital form. Therefore, if the argument that the body of the
cheque should have been filled up by or in the handwriting of the drawer only; to
make it a validly drawn cheque; is taken to the logical end, then it goes against the
provisions of the Negotiable Instruments Act itself. In that situation, there cannot be
any `cheque' in the electronic form; CRM-M-30633 of 2019 (O&M) -7- because it
would not contain any handwriting of the drawer, nor the signature in physical form.
Same is the tone and tenure of the definition of the `Bill of Exchange' as contemplated
by Section 5 of the Act. While defining Bill of Exchange, which every cheque is, this
Section has also emphasised only upon the fact that the same is signed by the maker
of the Bill of Exchange. A bare reading of Section 5 of the Act also shows that the only
thing which is insisted by this Section for validity of bill of exchange is the `signatures'
of the maker of the bill. Everything else has been left to be defined by the variable
facts and circumstances of the case. Hence, this Court is of the opinion that the fact
that the body of the cheque is not filled up by the drawer of the cheque, is totally
immaterial in a trial for offence under Section 138 of NI Act. Once the cheque is a
complete document, containing all the particulars, as required by the Negotiable
InstrumentsAct, and the same bears undisputed signature of the drawer of the
cheque, then, the cheque would be a valid document under Negotiable Instrument
Act, irrespective of the fact as to who has filled up the body of the cheque. This strand
of intention of legislature can be very well gathered from the other provisions of the
Act as well. Wherever the Act talks of liabilities on the basis of Negotiable Instruments,
it has emphasised only on the fact that the drawer or indorser has signed the
document. Not only that, the Act goes to the extent of recognising the `indorsement in
blank' and presuming the authority; with the holder in due course; to fill up the
amounts therein. The definite provisions to this effect are contained in Section 13,
Section 16 and Section 20 of the Negotiable Instruments Act. Still further, Section 89
recognises the negotiable instrument as a valid instrument despite the alteration
thereon, if the alteration is not apparent on the face of it. This CRM-M-30633 of 2019
(O&M) -8- would also show that the Act is emphasising in favour of the validity of the
instrument if it is `signed' by the drawer, maker or indorser. Moving a step further,
Section 120 of the Act, creates an estoppel against the drawer of the cheque or maker
of a promissory note or bill of exchange; by denying him the right to question the
validity of the instrument as originally made or drawn. Therefore, there is no statutory
or jurisprudential basis to hold that unless the body of the cheque is filled up by the
drawer himself, the cheque would not be taken as having been validly `drawn' by him.
Once the signatures are not denied then it contains an in-built presumption that all the
material particulars have been filled up either by the drawer or with his authorisation,
unless the drawer proves it otherwise, by leading some other independent evidence.
As mentioned above, the fact that body of the cheque was filled up in handwriting
other than that of the drawer of the cheque; is not any proof of the fact that the
consent of the drawer; in drawing such a cheque; was missing. If this is permitted then
the drawer of the cheque can frustrate the provisions of Negotiable Instruments Act
in; virtually; every case. He can get the cheque prepared as per his choice from some
other person and can subsequently start pleading that he had not filled up the body of
the cheque or that he had not consented to the filling of the body of the cheque. In
such a situation, the payee or the holder in due course would have no means to prove
his consent. Otherwise also, since the cheque is not a document which is required to
be attested by witnesses for being a valid document, therefore, the complainant is
under no legal obligation to examine a witness to prove the due execution of the
same. On the contrary, if the drawer of the cheque takes a plea that his consent qua
drawing of the CRM-M-30633 of 2019 (O&M) -9- cheque was missing, then it is,
exclusively; for the drawer to prove the fact that he had not consented to the filling of
the body of the cheque. Although the counsel for the petitioner has relied upon a
judgment of Orissa High Court in case M/s Surveka Distributors Pvt. Ltd. and others v.
M/s S.R. Retail Zone Pvt Ltd., 2018(5) R.C.R. (Criminal) 317 and a judgment of Kerala
High Court in case C. Santhi v. Mary Sherly, 2011(4) R.C.R. (Criminal) 94. However, this
Court finds the said judgments to be distinguishable on the facts of these cases. In case
of M/s Surveka Distributors Pvt. Ltd. (supra), it is clear that the accused in that case
has taken a plea that he was having regular business dealings with the complainant
and he had given the un-filled cheque in good faith to the complainant. Therefore, to
establish his plea of good faith in handing over blank cheque to the complainant of
that case, the accused had prayed for comparison of signatures of the `complainant'
on the said cheque. In the present case, the accused/ petitioner is not seeking the
comparison of handwriting of the complainant, rather, he is seeking comparison of his
own handwriting, in a virtual attempt to say that it is not he who filled up the body of
the cheque, whereas anybody else may have done it. However, as mentioned above,
this is not any defence for the accused in a case under Section 138 of Negotiable
Instruments Act. So far as the judgment of the Kerala High Court in C. Santhi's case
(supra) is concerned, this Court is in respectful partial disagreement with the said
judgment. This Court finds that as per the statutory provisions the word `drawn' is not
defined by the Act. Even the definition of the cheque is such which may not even
require any handwriting of the drawer of the cheque. It can be even any digital format
requiring only digital `signature'. All the provisions of Negotiable CRM-M-30633 of
2019 (O&M) -10- Instruments Act only require signatures of the drawer on such
instrument for making it a valid tender. Therefore, as observed above, once the
signatures are not disputed; then the cheque has to be taken to have been drawn by
the drawer himself, however, subject to the other defences which the drawer may be
able to take; in accordance with law. This Court also finds that the trial Court has
rightly recorded that it is not even the case of the complainant that the cheque was
filled up by the petitioner/ accused in his presence. Rather, it is the case of the
complainant that the body of the cheque was already filled up and the petitioner only
put his signatures in his presence. Therefore, getting compared the handwriting for the
purpose of a fact; which is not even claimed by the complainant; would have been a
useless exercise. Hence, this Court does not find any illegality or perversity in the order
passed by the Courts below. Even otherwise, the petitioner has already availed his
remedy of revision against the order passed by the trial Court. The second revision by
the same party is expressly barred under Section 397(3) Cr.P.C. Since in the present
case also, the petitioner has tried to reck up the issue of `legality' or `propriety' of the
orders passed by the Courts, therefore, the present petition is nothing but a second
revision; in the garb of petition filed under Section 482 Cr.P.C. However, a person
cannot be permitted to do indirectly what he cannot do directly. This proposition of
law has already been considered and decided by this Court in CRM-M-30350 of 2018 –
Sudesh and others v. State of Haryana and another, as under: “So far as the present
petition is concerned, this petition has been filed for invoking power of the High Court
under CRM-M-30633 of 2019 (O&M) -11- Section 482 Cr.P.C. A bare perusal of Section
482 Cr.P.C shows that the power under Section 482 Cr.P.C can be invoked for three
purposes, namely, for giving effect to the orders passed under this Court, for
preventing the abuse of the process of the Court and to meet the ends of justice. In
the present case, the prayer of the petitioners is not for giving any effect to any order
passed by the Court. Therefore, the first eventuality prescribed under Section 482
Cr.P.C is not at all attracted. Still further, by any means, an order passed by a Court of
competent jurisdiction and continuation thereof; cannot be branded as an abuse of
the process of Court; unless it is alleged and shown to the High Court that the Courts
below had acted for irrelevant reasons or for extraneous considerations. Needless to
say that sufficiency of reasons is not to be gone into after the revisional Court. It is not
even the allegation of the petitioners in this case that orders are passed by Court
below; for irrelevant or extraneous considerations. So far as the third ingredient of
Section 482 Cr.P.C is concerned, this Court is not supposed to go into `legality' and
`propriety' of the order passed by the trial Court. Section 397(3) of Cr.P.C prohibits
second revision by a party. Under Section 397(1), the Revisional Court is authorised to
see `legality' and `propriety' of the order passed by the Court. Since second revision by
the same party is prohibited under Section 397(3), therefore, any argument on
`legality' or CRM-M-30633 of 2019 (O&M) -12- `propriety' of an order passed by the
Court below, ordinarily, is not to be appreciated in proceedings under Section 482
Cr.P.C, unless it is shown, at the macro level, that such an order has resulted from
considerations which were totally alien to the process of the Court or have produced
incomprehensibly absurd result and, therefore, have resulted in defeating the ends of
justice itself. What cannot be done directly, cannot be done indirectly as well. In the
present case, except to argue for re appreciation of the material before the trial Court,
there is not even a submission or an allegation regarding any aberration in the process
adopted by the Courts for passing the impugned orders. Therefore, power under
Section 482 Cr.P.C cannot be exercised by this Court to re-appreciate the same
material, which was available before the Courts below and which have been duly
appreciated by the Courts below.” In the present case, much less to speak of any
process alien to law being adopted by the Courts below, as stated above, this Court
does not find even any illegality or perversity in the orders passed by the Courts
below. Hence, the present petition is, otherwise also, not maintainable. Dismissed.
July 19, 2019 ( RAJBIR SEHRAWAT ) renu JUDGE Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No