Vipin Viswanathan vs State Of Kerala

A.Badharudeen, J

This is a petition filed under Section 482 of the Code of Criminal Procedure to quash Annexure-V order viz., common order in CMP Nos.258 of 2019 and 2166 of 2019 in S.T.No.2785 of 2015 on the file of the Judicial First Class Magistrate Court-II, Haripad dated 25.09.2020.

Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents.

It is submitted by the learned counsel for the petitioner that, after completion of examination of PW1 and PW3, it has brought to the notice that PW1 denied the handwriting in Ext.P1 and therefore, the accused got examined as PW3 and he had produced Exts.D6 to D8 documents admittedly containing the handwriting of the complainant. Therefore, the petitioner filed the above petitions to send Exts.D6 to D8 for comparing the handwriting therein with that of the handwriting in Ext.P1.

Thereafter, the learned counsel for the respondents would argue that Exts.D6 to D8 are alleged to be chitty pass books issued by the complainant to the accused relating to a financial institution. The learned Magistrate dismissed the application, after hearing both sides on the finding that the documents marked as Exts.P1 and D6 to D8 were not connected with the complaint.

In this matter, it appears that in the reply notice issued by the petitioner to the demand notice issued by the complainant, a chity transaction to the tune of Rs.10 lakh was admitted starting from 16.10.2015 and the case put up by the petitioner in the reply notice is that the said amount was collected by the complainant through his collection agent.

In fact, Exts.D6 to D8 and its genuineness are matters to be proved through the person who prepared and signed it. Therefore, there is no necessity to send Ext.P1 and above documents to the handwriting expert in the facts of the given case, as espoused.

In a latest 3 Bench decision of the Apex Court reported in [2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2021 (1) KLD 527 : 2021 (2) SCALE 434 : ILR 2021 (1) Ker. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], M/s.Kalamani Tex & anr. v. P.Balasubramanian, the Apex Court considered the amplitude of presumptions under Sections 118 and 139 of the N.I Act it was held as under:

“Adverting to the case in hand, we find on a plain reading of its judgment that the Trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under S.118 and S.139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these `reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the Trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The Trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay.

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Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (1) KLT 598 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], P.36., where this Court held that:

“Even a blank cheque leaf, voluntarily signed and handed over by the accused, which  is  towards  some  payment,  would attract  presumption  under  S.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.”

Since it is settled that even a blank cheque leaf voluntarily signed and handed over by the accused, which is towards some payment would attract offence punishable under Section 138 of the Negotiable Instruments Act, expert opinion is of no significance in the case in hand.

In view of the matter, there is no reason to interfere with the order passed by the trial court and accordingly, this Crl.M.C. is dismissed.