Delhi High Court
Dinesh Kumar vs Subhash Singh on 3 July, 2025
Author: Amit Sharma
Bench: Amit Sharma
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26th March, 2025
Pronounced on: 3rd July, 2025
+ CRL.REV.P. 753/2016 & CRL.M. (BAIL) 2065/2016
DINESH KUMAR .....Petitioner
Through: Mr. M. P. Chaudhary, Advocate.
versus
SUBHASH SINGH .....Respondent
Through: Mohd. Furkan, Advocate (through
VC).
CORAM:
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present petition under Sections 397 and 401 read with Section 482
of the Code of Criminal Procedure, 1973, (for short, ‘CrPC‘) has been filed
seeking the following prayers: –
“i] Call the record of the Trial court.
ii] And whereby set aside the impugned order of the Ld. Add.
Session Judge dated 03/10/2016 passed in Criminal Appeal bearing
no 54289/2016 titled as “Sh.Dinesh Kumar V/S Subhash Singh“
iii] Pass any other or further order in favour of the petitioner which
this Hon’ble Court may deem fit and proper in the facts and
circumstances of this case.
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FOR THIS ACT KINDNESS THE PETITIONER SHALL EVER
PRAY.”
2. The present petition has been filed assailing the judgment of conviction
dated 03.10.2016 in Criminal Appeal No. 54289/2016 passed by learned
Additional Sessions Judge/Special Judge (NDPS), West District, Tis Hazari
Courts, Delhi, whereby the learned Appellate Court has upheld the conviction
and order on sentence of the present petitioner, for the offence punishable
under Section 138 of the Negotiable Instruments Act, 1881, (for short, ‘NI
Act‘) and dismissed the said appeal.
3. Learned Trial Court had convicted the petitioner in Complaint Case
No.1082/1 vide judgment of conviction dated 17.10.2015 and order on
sentence dated 18.11.2015 for the offence punishable under Section 138 of
the NI Act and sentenced him to undergo simple imprisonment for a period of
four (4) months and also to pay double of the cheque amount, i.e., sum of
Rs.3,50,000/- as compensation to the complainant/respondent as per proviso
to Section 143(1) of the NI Act read with sub-sections (1) and (3) of the
Section 357 of the CrPC within a period of one month from the date of
passing of order on sentence and in default of payment of fine, to undergo
simple imprisonment for three months. It was further directed that if
compensation amount is not paid in time, then, the same shall be recoverable
under Section 421 of the CrPC.
4. The case of the complainant/respondent, as per the complaint filed
before the learned Trial Court, was that the petitioner/accused was his friend
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for last many years and in October 2012, he had approached the respondent
for a friendly loan of Rs.3 Lakhs, however, the respondent gave him a
friendly loan of Rs.2 Lakhs on 09.10.2012. It was further stated that the
petitioner had promised to return the said amount within six months but he
failed to return the money within time despite repeated reminders given by
respondent over phone calls as well as personal visits. It was further stated
that on several requests of respondent for repayment, petitioner gave
Rs.25,000/- in cash to him and a duly signed cheque bearing No. 871929
dated 30.06.2013 of Rs.1,75,000/- drawn on The Delhi State Cooperative
Bank Ltd., Paschim Vihar Branch, New Delhi, (Ex. CW-1/A) along with an
assurance to the respondent that the said cheque would definitely be honoured
at the time of its presentation. The cheque was presented by the respondent
with his Bank, Andhra Bank, Guru Harkrishan Nagar, New Delhi, on
01.07.2013, however, the same was dishonoured and return unpaid with
remarks “Insufficient Funds” vide return memo dated 03.07.2013 issued by
Andhra Bank, Guru Harkrishan Nagar (Ex-CW-1/B).
5. It was further the case of the respondent that thereafter, he informed the
petitioner regarding the dishonour of the aforesaid cheque, however, he did
not pay any single penny and statutory legal demand notice as per proviso (b)
to Section 138 of the NI Act was served to the petitioner on 08.07.2013 via
registered AD (Ex. CW-1/C). It was further stated that in response to the said
notice, the petitioner through his counsel gave a false reply on 22.07.2013
(Ex. CW-1/G) and deliberately did not make the payment of the subject
cheque amount. The respondent had alleged that the petitioner did not keep
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sufficient funds in his bank and has thus, committed offence punishable under
Section 138 of the NI Act. Based on these facts, complaint was filed before
the learned Trial Court.
6. Learned Metropolitan Magistrate, after perusing the pre-summoning
evidence and contents of the complaint, had issued summons against the
petitioner on 27.08.2013. Notice of accusation under Section 251 of the CrPC
against the petitioner was framed on 15.01.2014. During the course of trial,
the respondent examined himself as CW-1, Kumara Swamy, Assistant
Manager, Andhra Bank, as CW-2 and Rajesh Chandra Veera, Assistant
Manager, Andhra Bank, as CW-3, to prove his case. Petitioner led defence
evidence by examining Sanjeev Kumar, Banking Assistant from Delhi State
Cooperative Bank, Paschim Vihar, as DW-1, to prove that the signatures on
the subject cheque and the specimen signature card, Ex. DW-1/2, kept with
the bank are not same. Petitioner had further sought to prove that the signature
on the subject cheque and the account opening form, Ex. DW-1/1, was also
not the same.
7. Statement of the petitioner under Section 313 read with Section 281 of
the CrPC was recorded wherein he stated that the subject cheque in question
had not been issued by him to the respondent. He further stated that he did not
owe any liability towards the complainant and in fact, he had kept the subject
cheque along with other cheques with one, Sumit Arora. He stated that he had
availed financial assistance of Rs.32,000/- or Rs.33,000/- from ICICI bank.
He further stated that he is an ice seller in street in front of the shop of Sumit
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Arora and as he did not have any place to keep his cheque(s) (cheque book),
so he had kept the same with Sumit Arora for keeping them safely and the
respondent had misused the said cheques in question in connivance with said
Sumit Arora. It was further stated that the subject cheque is one of the
cheques of the said cheque book given to Sumit Arora and the respondent had
malafidely used the same to harass him. It was further stated by the petitioner
that the same defence was duly taken in reply dated 22.07.2013 (Ex. CW-1/G)
to the statutory legal demand notice sent by the respondent.
8. Learned Trial Court noted that the petitioner has not been able to rebut
the presumptions under Section 139 read with Section 118 of the NI Act and
the respondent had successfully proved all the essential ingredients of Section
138 of the NI Act and accordingly, he was held guilty of commission of
offence punishable under Section 138 of the NI Act and sentenced as noted
hereinabove. Thereafter, petitioner filed appeal assailing the impugned
judgment of conviction and order on sentence passed by learned Trial Court,
however, the same was also dismissed as being devoid of merit and his
conviction and sentence were accordingly upheld. Hence, the present petition
has been filed assailing the judgment passed by learned ASJ in appeal filed by
the petitioner.
9. Learned counsel for the petitioner has submitted that both the learned
Trial Court as well as learned Appellate Court had failed to appreciate the fact
that the respondent has not placed on record any document regarding the
alleged payment of Rs.2 Lakh as friendly loan to the petitioner. It is further
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submitted that the Courts below have also not taken into consideration the fact
that the signature of the petitioner on the subject cheque is different from the
specimen signature card kept with the bank and the same has been duly
proved on behalf of the petitioner by the testimony of DW-1. Attention of this
Court has been drawn towards the account opening form as well as the
specimen signature card placed on record by way of testimony of DW-1 and
the subject cheque in the present case to show that the signature of the
petitioner on both the places are different and the same has not been given due
consideration by the learned Trial Court as well as learned Appellate Court. It
is further submitted that the learned Trial Court has not even adverted to the
testimony of DW-1 in its judgment at all.
10. Attention of this Court has further been drawn towards the subject
cheque and it is submitted that there is cutting /alteration in the printed year
on the cheque and the same does not bear any signature of the petitioner for
verification. It is the case of the petitioner that the respondent has neither
placed on record any document showing the payment of Rs.2 Lakh as alleged
nor any proof of alleged return of Rs.25,000/- to him. Learned counsel has
further submitted that the impugned judgments passed by learned Trial Court
as well as learned Appellate Court are based on assumptions and
presumptions as they have given definitive opinion on the basis of cursory
perusal regarding the signatures of the petitioner on the subject cheque and
the specimen signature card. It is further the case of the petitioner that he has
duly rebutted the statutory presumption under Section 139 read with Section
118 of the NI Act on the basis of the defence evidence led by him and the
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same has not been considered by the learned Trial Court and Appellate Court
at all.
11. Learned counsel has further submitted that the respondent is a stranger
to the petitioner and no loan as alleged was granted by him to the petitioner. It
is the case of the petitioner that he is an ice seller who used to sell in front of
the shop of one Sumit Arora and had purchased a bike and for the payment of
instalments of the said bike, he had kept unsigned cheque book in the shop of
Sumit Arora and the respondent in connivance with Sumit Arora had filed the
present complaint to falsely implicate the petitioner.
12. Thus, it is submitted that the impugned judgments suffer from patent
illegalities, infirmities, and perversity and the same can be looked into by this
Court. It is, therefore, prayed that the impugned judgments be set aside and
the petitioner be acquitted in the present case for the offence punishable under
Section 138 of the NI Act. In support of the aforesaid contentions, learned
counsel for the petitioner has placed reliance on Krishna Janardhan Bhat v.
Dattatraya G. Hegde1, and Sanjay Mishra v. Ms. Kanishka Kapoor @
Nikki2.
13. Per contra, learned counsel for the respondent has submitted that the
present petition is not maintainable inasmuch as the learned Trial Court as
well as learned Appellate Court has duly appreciated the facts of the present
1
(2008) 4 SCC 54: 2008 SCC OnLine SC 106
2
Judgment dated 24.02.2009 passed by Hon’ble Bombay High Court in Criminal Application No. 4694 of
2008
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case and the defence evidence led by the petitioner during the course of the
trial. It is further submitted that the present petition has been filed by
suppressing and concealing material facts and is thus, liable to be dismissed
as both the parties are known to each other for last many years. Learned
counsel has submitted that the petitioner is a habitual defaulter and had taken
money from his friends by showing urgency and at the time of return of
money, he issued cheques on false assurances without keeping sufficient
funds. Attention of this Court has been drawn towards the judgment of
conviction dated 07.10.2014 passed by learned Trial Court in CC No.
6536/1/12 titled as “Sumit Arora v. Dinesh Kumar” and the judgment of
learned Appellate Court against the said judgment in Criminal Appeal No.
61/2, wherein the petitioner has been convicted for the commission of offence
punishable under Section 138 of the NI Act. It is further pointed out that in
the said case the petitioner had taken different defences one of which was that
he had given two cheques to the complainant therein and out of those two
cheques one was handed over to the complainant herein, Subhash, to harass
the petitioner. It is pointed out that the complainant in the aforesaid CC is the
same person with whom the petitioner claims to have left his cheque for safe
custody.
14. Learned counsel for the respondent has further submitted that in respect
of the alteration in the year of the subject cheque, the learned Appellate Court
as well as Trial Court has observed the same is not a material alteration within
the definition of Section 87 of the NI Act as the case of the petitioner is not of
cancellation or overwriting on the date of cheque. Regarding the difference in
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the signature of the petitioner on the subject cheque and specimen signature
card, it is submitted that the only difference in both the signatures is that the
petitioner has signed as ‘Dinesh’ in the subject cheque and ‘Dinesh Chand’ in
the specimen signature card. It is further submitted that the dishonour of
cheque in the present case was on account of insufficiency of funds and not
because of non-matching of the drawer’s signature. Moreover, learned Trial
Court and Appellate Court, on examination of the signatures under Section 72
of the Indian Evidence Act, 1872, (for short, ‘IEA’), have given findings that
the difference in the signatures is only in respect of the full name of the
petitioner and the petitioner has not examined any expert during his defence
evidence to show that the signature on the subject cheque were forged by the
respondent in order to falsely implicate him in the present case.
15. It is the case of the respondent that the petitioner has not deliberately
signed the subject cheque in his full name and the Courts below have duly
adverted to the said fact and have given findings in this regard after due
appreciation of facts. It is thus, submitted that the impugned judgments do not
suffer from any infirmity, illegality and perversity and therefore, the present
petition is liable to be dismissed.
16. Heard learned counsel for the parties and perused the record.
17. The main contention on behalf of the petitioner is that he never had any
transaction with the complainant/respondent. It is the defense of the petitioner
that the respondent in collusion with one Mr. Sumit Arora had misused the
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cheque in question. It is a stand of the petitioner that he was an ice seller who
used to sell ice in front of the shop of Mr. Sumit Arora. As per the petitioner,
he had purchased one motorbike from M/s Shiva Auto in installments and the
aforesaid Sumit Arora had helped the petitioner in opening his bank account
and since, he did not have any safe place to keep the cheque book and
passbook, he, therefore, handed it over to said Sumit Arora who kept the said
cheque book in his shop for the payment of installments to M/s Shiva Auto. It
was contended that the said cheque was, thereafter, misused by the respondent
in collusion with the aforesaid Sumit Arora. The other contention raised was
that the signature of the petitioner on the subject cheque is different from the
specimen signature kept with the bank which was duly proved on behalf of
the petitioner by way of a testimony of DW-1. Similarly, it was contended
that there were cutting/alterations in the printed year on the cheque which did
not bear any signature of the petitioner for its verification. Finally, it is
submitted that the respondent/complainant has not placed any document
showing payment of Rs.2,00,000/- as alleged or any proof of alleged return of
Rs.25,000/- to him by the petitioner. These contentions, as per the learned
counsel for the petitioner, were not examined by the learned Trial Court as
well as by the learned Appellate Court.
18. The learned Trial Court while convicting the petitioner had observed
and held as under: –
“11. Now, the accused never examined himself as a defence
witness in the present case. Neither did he furnish on record any
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not bring in an iota of proof to show that he had purchased a
motor bike from M/s Shiva Auto, got it financed from ICICI
Bank, the opening of his bank account or for that matter even
the repayment of all the installments as alleged by him. The
accused also never got examined any of the witnesses who were a
part of the above transaction. In the absence of any substantial
proof mere oral averments is neither here nor there and will not
help the case of the accused.
12. Now, the accused had got examined only one bank witness as
DW1 from Delhi State Cooperative Bank. The above witness had
tendered the certified copy of account opening form as well as copy
of specimen signature which are Ex.DW1/1 and Ex.DW1/2. The
accused has also relied on Certified copy of Rashan Card of
accused Ex.DW1/3,, certified copy of cheque in question return
voucher Ex.DW1/4 and certified copy of image of cheque in
question Ex.DW1/5, certified copy of letter for stop payment to the
branch manager Ex DW1/6 and certified copy of charges for stop
payment as Ex.DW1/7, certified copy of pan card of the accused
Ex.DW1/8 and certified copy of voter card is Ex.DW1/9 and
certified copy of KYC form is Ex.DW1/10. A careful perusal of the
above documents do not show a significant difference in the
signature of the accused when examined by this court u/s 73 of the
Indian Evidence Act 1872. True, the witness has gone on to admit
that the signature in the specimen card as well as the cheque is
different but that difference is only to the extent that the accused
had not signed the cheque in question in full as in his specimen
signature. In the cheque in question he has signed as Dinesh
whereas in the specimen signature he has signed as Dinesh
Chand. Further, the fact that the cheque in question had got
dishonored on the ground of funds insufficient and not
drawer’s signature differs only complicates the case of the
accused. Interestingly, the name of the accused as furnished in this
case and also as furnished in his bail bond is Dinesh Kumar which
raises strong suspicion that the accused has deliberately not signed
the cheque in question in full. The accused never made any effort
to examine any handwriting expert to actually challenge the
signature in the cheque in question. By merely saying that he had
not signed the cheque in question will not sufficiently but the case
of the complainant. The burden is on the accused to prove that the
signature in the cheque in question is not his. The evidence of theSignature Not Verified
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bank witness to the effect that the signature in the specimen,
signature differs as its in full does not prove the case of the
accused that he has not signed the cheque in question,
especially in the light of the fact that the name Dinesh written
in Hindi, completely matches with the same mentioned in the
specimen signature. The fact that the cheque in question was
drawn from the account of the accused and had also got dishonored
on the ground of insufficient funds and not drawer’s signature
differs would sqauarely attract the presumptions under section 118
and 139 of the Act in favour of the complainant. The accused has
not been able to prove that the signature in the cheque in question
was indeed forged and not his. 13. As per the story of the
accused, he had left the entire cheque book with one Mr. Sumit
Arora. This appears to be completely incredible and makes the
case of the accused a big suspect as it is difficult to believe that
any prudent person should leave a completely blank cheque
book with another person merely because he did not have any
other safe place to keep the same. Further, the accused has also
never claimed back the cheque book from the above Sumit Arora
or had lodged any police complaint regarding the same.
Interestingly however, the accused has relied on a letter to the bank
for stop payment which is Ex.DW1/6 and also a photocopy of the
police complaint which has not even been tendered in evidence and
both these documents mentions that the above Sumit Arora had
handed over the cheques of the accused to one Mr. Satish Singh
who appears to be and altogether new persona in the story of the
accused.
14. The only other piece of contention raised by the accused is that
the cheque in question also bears material alteration as there is a
cutting on the date and a printed “19” has been struck of to rewrite
2013. To this effect the accused has also relied on a series of
judgments “Smt. Kamla Bai Vs. Madan Lal“
(M.Crl.C.No.1069/2008), “Kuldeep Singh Vs. Dharam Singh“
(CRM-A-491-MA of 2014), “Veera Exports Vs. T.Kalavathy”
(Appeal Cri No.1110-1111 of 2001), “M/s Goyal Enterprises Vs.
State of Jharkhand & Another” (Appeal no.28 of 2008), Mrs.
Kalyani Baskar Vs. Mrs. M.S.Sampoornam” (Appeal (crl.)
1293 of 2006), Loonkaran Sethia Vs. Mr. Ivan E. John and
Ors” (Civil appeal no.416 of 1973 and 572).
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All of these judgments were carefully perused and they deal with
all such cases wherein there were material alterations and in
absence of the validation by the accused the instrument was held to
be void. However, the facts of the present case are at variance with
the facts of the above cases. In the present case the date has not
been altered,per se. Rather, the date is mentioned clearly as 30th
June 2013. However, in place of 2013 there is 19 printed on the
leaf of the cheque which has been struck of. This does not raise the
possibility of a material alteration within the defination of section
87 of the Act as it is not the case that a particular date has been
mentioned, thereafter, canceled and a new date has been re written.
Rather, it only shows that the cheque leaf belongs to some old
cheque book wherein the date of the instrument has been
mentioned. Otherwise also the onus under section 103 of the Indian
Evidence Act 1872 lies on the accused to prove a specific fact. It
was for the accused to prove his contention that there was actually
a material alteration in the instrument in question within the
parameters of section 87 of the Act which was not done by the
accused.
15. In an offence under section 138 of the Act, once it is proved
that the cheque in question is of the account of the accused and
further it has got dishonored on a ground other than “drawer’s
signature differs” presumptions would generally accrue in favour of
the complainant. Onus is on the accused to rebut the presumptions
by raising such credible defence as would make his story
trustworthy. The accused has failed in discharging his burden and
sufficiently rebuting the case of the complainant.”
(emphasis supplied)
19. Perusal of the aforesaid observations made by learned Trial Court
shows that all the contentions raised by the petitioner in the present petition
have been dealt with and the same were challenged by a way of an appeal
before learned ASJ and the learned Appellate Court while dismissing the
appeal of the petitioner, had observed and held as under: –
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“6. After giving my thoughtful consideration to the aforesaid rival
submissions. I have come to the considered opinion that the appeal
as filed by the appellant is devoid of merits as there is no material
irregularity or illegality in the impugned judgment of conviction
and order on sentence. In his well written judgment dated
17.10.2015, Ld. Trial Court has rightly come to the conclusion that
the accused (appellant herein) has failed to rebut the presumption in
favor of the complainant. Further all the ingredients to make out a
case U/s 138 of Negotiable Instruments Act, 1881 have been
proved beyond reasonable doubt. First of all, it is not in disputed
that the cheque in question got dishonored due to the fund
insufficient in the bank account of accused. The plea of the
appellant that the cheque in question does not bear his signature,
has no force in it in view of the fact that appellant failed to examine
any handwriting expert to substantiate his said claim as it was
incumbent upon the appellant to prove the said fact on record by
calling the handwriting expert in his defence, which appellant
failed to call. I find myself in complete agreement with the finds of
Ld. Trial Court that “a careful perusal of the documents do not
shows a significant difference in the signature of the accused
when examined by the court U/s 72 of the Indian Evidence
Act.” Ld. Trial Court has further rightly observed that
“……….that difference is only to the extent that the accused
had not signed the cheque in question in full as In his specimen
signature. In the cheque In question, he has signed as Dinesh,
whereas In the specimen signature, he has signed as Dinesh
Chand.” It has also been rightly opined by Ld. Trial Court that
“the evidence of bank witness to the effect that the signature In
the specimen signature differs as Its In full does not prove the
case of the accused that he has not signed the cheque In
question, especially In the light of the fact that the name Dinesh
written In Hindi completely matches with the same mentioned
In the specimen signature”. The claim of the appellant that Ld.
Trial Court ought not to have examine the signature of appellant
itself, rather, it should have taken the assistance of expert, is devoid
of substance as the Court can always make such examination to
arrive at true picture. Thus, the appellant has been failed to prove
on record that the signature in the cheque in question was forged
one.
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7. As regards to the plea of appellant that he has never borrowed
any amount from the complainant and the cheque in question was
not issued and delivered to the complainant for discharging his
legal debt or liability, since this court has already arrived at the
conclusion that the appellant has been failed to prove on record that
the signature in the cheque in question was forged one and the
complainant has already furnished all the documents regarding the
issuance of cheque on record, the presumption of Section 118 NI
Act and 139 NI Act would be attracted.
Section 139 of the Negotiable Instrument Act provides as follows:-
“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, or any debt or other
liability.”
It has been rightly observed by Ld. Trial Court that once the
presumption is raised, the onus squarely shifts on the accused to
rebut the same failing which the court “shall” presume that the
cheque in question was issued towards some legal debt or liability
and in lieu of consideration.
8. The another plea, as raised on behalf of appellant that there is
cutting on the date and a printed “19” has been struck of to rewrite
2013, also find no force in it. Perusal of the cheque in question
reveals that the date has not been altered, rather, being the cheque
pertaining to the old series starting from 19, the said word “19” had
been struck off and date mentioned as 30th June 2013. Ld. Trial
Court has rightly observed that “this does not raise the possibility
of a material alteration within the definition of Section 87 of the
Act as it is not the case that a particular date has been
mentioned, thereafter, canceled and a new date has been re-
written.”
9. Further in order to show that appellant used to sell ice in front of
the shop of Sumit Arora and the said Sumit Arora helped him in
got opening a Bank account in Bank of India at his address i.e. RZ-
A- 1/180, Nihal Vihar, New Delhi and appellant had purchased one
motor bike from M/s Shiva Auto in installments and the said M/s
Shiv Auto got the motorbike financed from ICICI Bank upon the
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recommendation of Sumit Arora and since the appellant was not
having safe place for keeping cheque book and pass book, on the
demand of Sumit Arora and as security, the appellant handed over
cheque book (signed/ blank cheques) to Sumit Arora to keep the
cheque book in his shop but later on Sumit Arora became dishonest
and misused, misappropriated and mis-utilized some of the cheques
by filling his name in the cheque and mis-utilized the same, there is
not an iota of evidence on record in this regard. By examining
himself in his defence, appellant could have narrated about these
facts and in the absence of same, the same remains only a bald
assertions. Even otherwise, it is unbelievable that one would keep
his cheque book (signed/blank cheques) and passbook etc., as
claimed by the appellant in his appeal, with some other person only
because of the reasons that he was not having any safe place to
keep them.
10. Since, it is established that the cheque in question was issued by
appellant, then onus was on the appellant to rebut the presumption
and the appellant was failed in rebutting the same.
11. In view of aforesaid, it is clear that all the necessary ingredients
of section 138 of Negotiable Instruments Act are fulfilled in this
case, so I find no infirmity in the impugned judgment dated
17.10.2015 and as such the same is hereby upheld.”
20. It is pertinent to note that the same pleas have been raised before this
Court as well by the petitioner. This Court has gone through the testimony of
CW-1, i.e., the complainant/respondent and the cross-examination conducted
on behalf of the petitioner before the learned Trial Court. In the cross-
examination, the respondent has clearly given the dates when the petitioner
approached the respondent for grant of loan, i.e., 4th/5th October, 2012, and
the date of giving the loan to petitioner, i.e., on 09.10.2012. He stated that the
petitioner had repaid the amount of Rs.25,000/- on 29.06.2013 in cash and at
the same time the subject cheque was handed over to the
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complainant/respondent by the petitioner for the payment of the remaining
amount. Thereafter, the cross-examination of the petitioner is only with regard
to giving suggestions to the respondent and nothing substantial has been
brought on record in order to rebut the presumption under Section 139 of the
NI Act. In the cross-examination of DW-1, who was the concerned Officer of
the petitioner’s bank, it has been stated by the said witness that the reason for
dishonor of the cheque was “insufficient funds” and not “mismatching of
signatures”.
21. In order to rebut the presumption under Section 139 of the NI Act, it is
not imperative for the accused/petitioner to enter into the witness box and
testify. However, at the same time, the presumption has to be rebutted by way
of some material on record or by pointing out the lacunae in the case on the
complainant by way of cross-examination. As pointed out hereinabove, in the
cross-examination, the respondent herein has categorically given the definite
dates of the transactions as well as the date of the transaction, when the
subject cheque was handed over to him by the petitioner/accused. The defense
taken by the petitioner that the cheque book was kept with some other
persons, i.e., Sumit Arora, as he was paying installments with respect to his
bike has also not been substantiated on record by any evidence.
22. So far as the contention of the difference in signatures is concerned,
this Court has also perused the signature on the subject cheque and the
specimen signature on the document provided by DW-1 and it is duly noted
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that the signature on the subject cheque in Hindi is “दिनेश” and in the
specimen signature (Ex. DW-1/2) is “दिनेश चन्ि”. The signature of the
petitioner on the specimen signature (Ex. DW-1/2) were and
the signature of the petitioner on the subject cheque (Ex. CW-1/1) were as
. From the perusal of both the signatures of the petitioner
similarity is clearly visible. The onus was on the petitioner to establish that it
was not his signature. Possibility of the petitioner signing the cheque in his
first name to avoid his liability cannot be ruled out. The subject cheque was
not dishonoured for mismatch of signature but due to “Insufficient funds”.
23. So far as the argument of alteration on the cheque, it is noted that it is
not the case of the petitioner that he had given the signed cheque of a certain
date which was then altered and presented. Thus, if the petitioner had been
successful in demonstrating that the signature on the cheque does not belong
to him then such an alteration, if any, would assume significance. Otherwise,
the findings of the learned Trial Court and the learned Appellate Court on this
issue is in accordance with law.
24. The law with respect to the interference by this Court in the revisional
jurisdiction after two consecutive findings by the Courts below is well settled.
In order to put this Court to exercise the jurisdiction under Section 401 of the
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CrPC, the petitioner had to show illegality or perversity in the impugned
judgment passed by the learned Appellate Court as well as the learned Trial
Court in the instant case. The grounds taken in the present petition as well as
during the course of the trial are the same which were taken by the petitioner
before the learned Appellate Court. The grounds raised before the learned
Appellate Court were dealt by a detailed threadbare analysis of the
prosecution/complainant’s evidence placed on record and findings given by
the learned Trial Court. It was for the petitioner to demonstrate the
perverseness in the impugned judgment passed by the learned Appellate Court
in order to cause interference by this Court with two concurrent findings of
conviction qua the present petitioner. The Hon’ble Supreme Court in Manju
Ram Kalita v. State of Assam 3 , while dealing with the scope of
reappreciation of evidence by higher Court in criminal revision, had observed
in paragraph 9 as under: –
“9. It is a settled legal proposition that if the courts below have
recorded the finding of fact, the question of reappreciation of evidence
by the third court does not arise unless it is found to be totally
perverse…”
Following the aforesaid judgment, the Hon’ble Supreme Court in
Malkeet Singh Gill v. State of Chhattisgarh4, has held as under: –
“10. Before adverting to the merits of the contention, at the outset, it
is apt to mention that there are concurrent findings of conviction
arrived at by two courts after detailed appreciation of the material and
evidence brought on record. The High Court in criminal revision3
(2009) 13 SCC 330
4
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against conviction is not supposed to exercise the jurisdiction alike to
the appellate court and the scope of interference in revision is
extremely narrow. Section 397 of the Criminal Procedure Code (in
short “CrPC“) vests jurisdiction for the purpose of satisfying itself or
himself as to the correctness, legality or propriety of any finding,
sentence or order, recorded or passed, and as to the regularity of any
proceedings of such inferior court. The object of the provision is to set
right a patent defect or an error of jurisdiction or law. There has to be
well-founded error which is to be determined on the merits of
individual case. It is also well settled that while considering the same,
the Revisional Court does not dwell at length upon the facts and
evidence of the case to reverse those findings.”
25. This Court has examined the impugned judgment dated 03.10.2016
passed by the learned Appellate Court as well as the judgment of conviction
and order on sentence passed by the learned Trial Court and on the basis of
the material on record, this Court finds no grounds to interfere in the
impugned judgment passed by the learned ASJ. Accordingly, the present
petition is dismissed.
26. Order dated 21.11.2016 staying impugned order on sentence dated
18.10.2015 passed by learned Trial Court stands vacated.
27. The petitioner shall undergo the sentence awarded by the learned Trial
Court. The petitioner shall surrender before the learned Trial Court within a
period of 15 days to serve the sentence awarded to him and for payment of the
compensation amount of Rs. 3,50,000/- to the respondent.
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28. In view of the aforesaid directions, the petition is dismissed and
disposed of accordingly along with all pending applications, if any.
29. Copy of the judgment be sent to the concerned Jail Superintendent as
well the learned Trial Court for necessary information and compliance.
30. Judgment be uploaded on the website of this Court, forthwith.
AMIT SHARMA, J.
JULY 03, 2025/kr/ns/sc
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