IMPORTANT POINT
No Court can comment on the non-examination of the accused under Section 315 Cr.P.C.

R. Basant, J.—What are the ramifications of the right to silence—the glorious right to silence as it is often referred to, in a criminal prosecution under Section138 of the Negotiable Instruments Act? Is Section 3l5 of the Cr.P.C. applicable in such a prosecution? These questions arise for consideration incidentally in this revision petition.

2. This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section138 of the Negotiable Instruments Act.

3. The cheque is for an amount of Rs.20,000. Signature in the cheque is admitted. The cheque was dishonoured on the ground of insufficiency of funds. Notice of demand, though duly received and acknowledged, did not evoke any response. No defence evidence whatsoever was adduced before the trial Court. The complainant examined himself as P.W. 1 and proved Exts.P. 1 to P. 11. At the stage of trial, a contention was raised that the cheque was not issued voluntarily for the discharge of any legally enforcement debt/liability. Some miscreants had trespassed into the house of the accused. The father of the accused owed amounts to some of those miscreants in some transaction. They forcibly compelled the accused to sign blank cheques and they took them away. One of those cheques is mis-utilised to foist this false complaint. This, in short, is the defence urged.

4. Courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredient of the offence punishable under Section 138 of the Negotiable Instruments Act. Accordingly, they proceeded to pass the impugned Judgments.

5. Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned concurrent Judgments, the learned counsel for the petitioner only reiterates the contention raised before the courts below that the cheque was not issued for the discharge of any legally enforceable debt/liability. It was obtained and taken away by force by the miscreants including the complainant.

6. Less said about this contention, the better. On probabilities, this contention is certainly found to be unacceptable. There is no contemporaneous conduct, even suggestive on the part of the accused, which would indicate or establish the probability of the accused being coerced to part with the cheque in the circumstances in which he claims to have done it. We have the evidence of PW 1. His evidence is eminently supported by his ability to produce the cheque in question which admittedly bears the signature of the accused. The eloquent silence/inaction of the accused on receipt of the statutory notice of demand threatening prosecution clinches the issue finally in favour of PW1. Execution of the cheque having been proved, the presumption under Section 139of the Negotiable Instruments Act comes

into play and no worthwhile attempt has been made to rebut that presumption.

7. The counsel contends that the accused had filed a suit against the complainant and two others as O.S. 253 of 2000. The documents relating to that suit have been produced and marked as Exts.P8 to P 11. These documents have not been referred to at all by the trial Court. The counsel laments that the trial court had not adverted to Exts.P8 to P11 at all. The appendix to the trial Court’s Judgment does not also show that Exts.P8 to P11 were marked. If Exts.P8 to P11 were marked before the trial Court, the trial Court was certainly in error in not adverting to those documents at all. But that omission has not resulted in any prejudice or miscarriage of justice.

8. The learned Sessions Judge, in the appellate Judgment, has adverted to Exts. P8 to P11 in detail. Exts.P8 toP11, as rightly found by the learned Sessions Judge, can only reveal that the accused had raised such a contention. But he has totally failed to substantiate that contention.

9. I do find that the Appellate Judge has committed an error in observing in paragraph 6 of the appellate Judgme