Madhya Pradesh High Court
Rakesh vs Bhagat Singh Parihar on 16 January, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2025:MPHC-IND:1071
1 MCRC-40157-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 16th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 40157 of 2024
RAKESH
Versus
BHAGAT SINGH PARIHAR
Appearance:
Shri Vikas Rathi, Advocate for the petitioners.
Ms. Archana Maheshwari, Advocate for the respondent No.1.
_______________________________________________________________
Reserved on : 13.11.2024
Pronounced on : 16.01.2025
_______________________________________________________________
ORDER
This miscellaneous criminal case having been heard and reserved for
order, coming on for pronouncement this day, Justice Sanjeev S. Kalgaonkar
pronounced the following:
This petition under Section 482 of the Code of Criminal Procedure
Cr.P.C./Section 528 of Bhartiya Nagarik Suraksha Sanhita, 2023 is filed feeling
aggrieved by the order dated 02.09.2024, passed in Criminal Revision
No.21/2024 by the learned Additional Sessions Judge, Sanwer, District
Indore(M.P.) whereby learned Additional Sessions Judge affirmed the order datedSignature Not Verified
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NAIR
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01.07.2024, passed in SCNIA No.63/2017 by the learned Judicial Magistrate First
Class, Sanwer, District Indore rejecting the application filed under Section 45 of
the Indian Evidence Act for examination of handwriting on the cheque in
question.
2. The exposition of the facts giving rise to the present petition is as under :-
(1) The respondent Bhagat Singh Parihar had filed a criminal complaint inter
alia stating that he has advanced loan of Rs.9,40,000/- to the petitioner/Rakesh
Gehlot. Rakesh had given a cheque no.- 828831 of IDBI Bank, Branch Ratlam
Kothi, Indore on 04.11.2016 to the respondent for amount of Rs.9,40,000/- The
complainant presented the cheque at Bank of India, Branch Sanwer on
19.12.2016, but the cheque was dishonoured for the reason of insufficient fundsin the account of accused Rakesh. Despite service of statutory notice, the accused
did not pay the amount of cheque, therefore, criminal complaint for offence
punishable under Section 138 of the Negotiable Instruments was filed before the
learned Judicial Magistrate First Class, Sanwer. The complaint is pending for trial
at SCNIA No.63/2017.
(2) The petitioner/accused preferred an application under Section 45 of the
Evidence Act for examination of the handwriting on the cheque alleging that there
is a difference in handwriting of the entries of cheque. The learned Judicial
Magistrate First Class rejected the application vide order dated 01.07.2024.
(3) The petitioner/accused preferred criminal revision before the learned
Additional Sessions Judge, Sanwer. The learned Additional Sessions Judge,
Sanwer rejected the revision petition vide order dated 02.09.2024, passed in
Criminal Revision No.21/2024.
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3. This revision petition is filed assailing both the orders on the following grounds
:-
(1) The Courts below have failed to recognise that the petitioner has right
of rebuttal against the presumption under Sections 118 and 139 of the
Negotiable Instruments Act. The petitioner was trying to avail the right of
rebuttal.
(2) There is prima facie difference in the handwriting of the accused and
the handwriting appearing on the cheque. The examination of handwriting
on the cheque is necessary for fair trial and the defense of the accused.
(3) The learned Additional Sessions Judge and the learned Magistrate have
failed to consider that if there is difference between the handwriting, the
story alleged by the respondent during cross-examination would become
false and baseless.
(4) The impugned orders are bad in law. The learned Additional Sessions
Judge wrongly interpreted the proceedings and the law.
4. On these grounds, it is requested that the order dated 02.09.2024, passed in
Criminal Revision No.21/2024 and the order dated 01.07.2024, passed in SCNIA
No.63/2017 be set aside and the application under Section 45 of the Indian
Evidence Act filed by the petitioner be allowed.
5. The learned counsel for the petitioner, referring to the cross examination of
complainant Bhagat Singh PW1, contended that the complainant has stated that
the cheque in question was filled by the accused. There is apparent difference in
handwriting of the accused on the order-sheet of the Court and the handwriting on
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NAIR
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cheque, therefore, examination of the contents of the cheque by the handwriting
expert is necessary for the defence of the accused. Learned counsel, referring to
the Orders of Madhya Pradesh High Court in cases of Sohanlal Singhal Vs. Sunil
Jain 2015 ACD 380; Girija Shankar Goswami Vs. Keshav Das Shilpkar, 2018
ACD 149 and Ramsevak Vs. Narayan Singh, 2013 ACD 247 , contended that the
accused is entitled to full opportunity of defence, therefore, he is entitled to get
entries of the cheque examined by the handwriting expert.
6. Per contra, the learned counsel for respondent submits that the accused had
not controverted his signature on the cheque, therefore, in view of the provisions
contained in Sections 20, 87 and 139 of the Negotiable Instruments Act, 1881, it
would be immaterial that entries in the cheque were not filled by the accused.
7. Heard both the parties, perused the record.
8. Dealing with the presumptions contained in section 20, 87 and 139 of the Act
of 1881, the Supreme Court in case of Oriental Bank of Commerce Vs. Prabodh
Kumar Tiwari (2022) 7 SCR 72, observed as under:-
4. The respondent admits that he signed and handed over a cheque
to the appellant. According to the respondent a signed blank
cheque was handed over by him. The question which arises in
the appeal is whether the High Court was correct in permitting
the respondent to engage a hand-writing expert to determine
whether the details that were filled in the cheque were in the
hand of the respondent. For the reasons set out below, we have
allowed this appeal against the order of the High Court for the
reason that Section 139 of the NI Act raises a presumption that a
drawer handing over a cheque signed by him is liable unless it is
proved by adducing evidence at the trial that the cheque was not
in discharge of a debt or liability. The evidence of a hand-
writing expert on whether the respondent had filled in the details
in the cheque would be immaterial to determining the purpose
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NAIR
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for which the cheque was handed over. Therefore, no purpose is
served by allowing the application for adducing the evidence of
the hand-writing expert.
14. In Bir Singh v. Mukesh Kumar (2019) 4 SCC 197,
after discussing the settled line of precedent of this Court
on this issue, a two-Judge Bench held:
33. A meaningful reading of the provisions of the
Negotiable Instruments Act including, in particular,
Sections 20, 87 and 139, makes it amply clear that a
person who signs a cheque and makes it over to the
payee remains liable unless he adduces evidence to
rebut the presumption that the cheque had been
issued for payment of a debt or in discharge of a
liability. It is immaterial that the cheque may have
been filled in by any person other than the drawer, if
the cheque is duly signed by the drawer. If the
cheque is otherwise valid, the penal provisions of
Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented
to a payee, towards some payment, the payee may
fill up the amount and other particulars. This in itself
would not invalidate the cheque. The onus would
still be on the accused to prove that the cheque was
not in discharge of a debt or liability by adducing
evidence.
[…]
36. Even a blank cheque leaf, voluntarily signed and
handed over by the accused, which is towards some
payment, would attract presumption under Section
139 of the Negotiable Instruments Act, in the
absence of any cogent evidence to show that the
cheque was not issued in discharge of a debt.
(emphasis supplied)
The above view was recently reiterated by a three-
Judge Bench of this Court in Kalamani Tex v. P.
Balasubramanian.
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15. A drawer who signs a cheque and hands it over to the
payee, is presumed to be liable unless the drawer adduces
evidence to rebut the presumption that the cheque has been
issued towards payment of a debt or in discharge of a
liability. The presumption arises under Section 139.
16. In Anss Rajashekar v. Augustus Jeba Ananth, (2020)
15 SCC 348, a two Judge Bench of this Court, of wh ich
one of us (D.Y. Chandrachud J.) was a part, reiterated the
decision of the three-Judge Bench of this Court in
Rangappa v. Sri Mohan (2010) 11 SCC 441, on the
presumption under Section 139 of the NI Act. The court
held:
12. Section 139 of the Act mandates that it shall be
presumed, unless the contrary is proved, that the
holder of a cheque received it, in discharge, in
whole or in part, of a debt, or liability.
The expression “unless the contrary is proved” indicates
that the presumption under Section 139 of the Act is
rebuttable. Terming this as an example of a “reverse onus
clause” the three-Judge Bench of this Court in Rangappa
held that in determining whether the presumption has been
rebutted, the test of proportionality must guide the
determination. The standard of proof for rebuttal of the
presumption under Section 139 of the Act is guided by a
preponderance of probabilities. This Court held thus:
“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.” (emphasisSignature Not Verified
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supplied)
17. For such a determination, the fact that the details in the
cheque have been filled up not by the drawer, but by some
other person would be immaterial. The presumption which
arises on the signing of the cheque cannot be rebutted
merely by the report of a hand-writing expert. Even if the
details in the cheque have not been filled up by drawer but
by another person, this is not relevant to the defense
whether cheque was issued towards payment of a debt or in
discharge of a liability.
9. Further, in case of Ajitsinh Chehuji Rathore Vs. State of Gujarat (2024) 4 SCC
453, taking note of the presumption under section 118(e) of the Act of 1881, it
was held that-
13. Section 118 sub-clause (e) of the NI Act provides a
clear presumption regarding indorsements made on the
negotiable instrument being in order in which they appear
thereupon. Thus, the presumption of the indorsements on
the cheque being genuine operates in favour of the holder in
due course of the cheque in question which would be the
complainant herein. In case, the accused intends to rebut
such presumption, he would be required to lead evidence to
this effect.
16. However, despite having opportunity, the accused
appellant did not put any question to the bank official
examined in defence for establishing his plea of purported
mismatch of signature on the cheque in question and hence,
we are of the firm opinion that the appellate Court was not
required to come to the aid and assistance of the appellant
for collecting defence evidence at his behest. The
presumptions under the NI Act albeit rebuttable operate in
favour of the complainant. Hence, it is for the accused to
rebut such presumptions by leading appropriate defence
evidence and the Court cannot be expected to assist the
accused to collect evidence on his behalf.
10. In view of these authoritative pronouncements on relevant law by the
Supreme Court, the benefit of the orders of Co-ordinate Benches is not available
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to the petitioner.
11. The petitioner has not denied signature on the cheque in question. In view of
the provision of Section 20 of the Act of 1881, the inchoate negotiable
instruments are also valid and legally enforceable. The presumption in favour of
the holder of cheque would not be rebutted merely by the report of handwriting
expert stating that the entries on the cheque are filled in by another person.
Although, the accused is entitled for the opportunity to submit his defense, the
examination of the entries on the cheque by the handwriting expert is immaterial
and unnecessary for the trial
12. Further, the Magistrate had taken cognizance of the alleged offence on
22.08.2017 and the particulars of the offence were explained on 15.03.2023. The
application under Section 45 of the Evidence Act was filed on 16.04.2024. The
petitioner was aware of his defence from inception of proceedings. The delay in
filing the application manifest that it is filed, with malafide intention, to delay the
proceedings.
13. In view of aforestated discussion, this Court is of considered opinion that
the learned Judicial Magistrate and the Revisional Court did not commit any
illegality or impropriety. No case is made out to invoke inherent jurisdiction
under section 482 of the Code of Criminal Procedure, 1973 or Section 528 of
Bhartiya Nagarik Suraksha Sanhita, 2023. Consequently, the petition is
dismissed.
(SANJEEV S KALGAONKAR)
JUDGE
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NAIR
Signing time: 1/16/2025
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NEUTRAL CITATION NO. 2025:MPHC-IND:1071
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pn
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 1/16/2025
6:47:31 PM
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