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2010(2) Bankmann 281 (Ker.)
KERALA HIGH COURT
R. Basant and M.C. Hari Rani, JJ.
Devan —Petitioner
versus
Krishna Menon — Respondent
Crl. R.P. No. 1186 of 2005 and connected cases
Decided on 9.4.2010
(ii) Indian Evidence Act, 1872—Section 73—Verification of signature—When there is serious dispute, Courts should not arrogate to themselves power to decide and determine genuineness of signature, handwritings and thumb impressions without expert opinion by its own naked eye comparison—Court may be referred to as expert of experts, but no finding of a Court should ordinarily rest solely on comparison made by Court under Section 73, in absence of evidence of any expert. (Para 20)
(iii) Criminal Procedure Code, 1973—Section 391—Indian Evidence Act, 1872—Section 73—Verification of signature—One of easiest ways to secure protraction of trial is to make a request to send cheques to expert—Every such request will not be automatically and ritualistically be accepted and allowed by Judge—Sufficient and satisfactory reasons must be shown to exist to justify such reference to an expert—Court is not bound to invoke powers under Section 391, Cr.P.C. only on the endorsement of Banker. (Para 22)
(iv) Negotiable Instruments Act, 1881—Sections 118, 138 and 139—Dishonour of cheque—Presumption of debt—Once signature, execution and handing over of cheque is satisfactorily proved by evidence by complainant, presumption under Section 139 of N.I. Act comes into play and same holds field until accused discharges burden on him at least by inferior standard of preponderance of possibilities and probabilities as applicable in civil case—Burden rests squarely on shoulders of accused. (Paras 23 and 28)
(v) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Signature differs—Cheques cannot be reckoned as cheques and consequent dishonour is not dishonour of cheque. (Para 29)
(vi) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Offence under Section 138 cannot depend on endorsement made by Banker while returning cheque—Culpability under Section 138 cannot be left entirely to Banker who makes endorsement while dishonouring cheques—Court in order to effectively implement scheme under Section 138 must reserve for itself, power to decide real reason that prompted Banker to dishonouring cheques—Mere fact that obliging Banker had added one more convenient reason cannot be permitted to frustrate and stultify working of legislative scheme under Section 138—Endorsement by Banker is not conclusive. (Paras 30, 34 and 37)
(vii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Mere fact that in notice and in complaint, complainant alleged mala fides, fraud and intention on part of accused to cheat complainant cannot in any way militate against maintainability of prosecution under Section 138. (Para 38)
2008(2) KLT 851 (Kar.)—Dissented
1992 Cr.LJ 380—Explained.
Crl. A. No. 483/1999; AIR 1999 SC 1952; AIR 2001 SC 676; 2002(3) KLT 852; 2003(2) KLT 16(SC)—Referred to.
1. (i) Does a cheque cease to be a cheque merely because the drawer raises a dispute about the execution of the cheque and the genuineness of the signature in the cheque?
(ii) Does it cease to be a cheque when a Banker constrained to dishonour the cheque of a valued customer instead of returning it with the endorsement that there is no sufficient funds includes the reason that the signature differs?
(iii) Is an obliging Banker making such an endorsement to be reckoned as the final arbiter of culpability in a prosecution for the offence under Section 138 of the Negotiable Instruments Act?
(iv) Does not the Court have jurisdictional competence in a prosecution under Section 138 of the Negotiable Instruments Act to ascertain the real reason for the dishonour of the cheque notwithstanding the purported reasons stated by the Banker?
(v) Does the decision in Thomas Varghese v. P. Jerome1 require or warrant reconsideration?
(iv) Is there a conflict between the decision in Reji Kumar v. Sukumaran2 and the decision in M.L. Kumaran v. Abdul Karim & Anr.3
2. These interesting questions arise for consideration in this Revision Petition which has come up before us on a reference by a learned Single Judge, who appears to have doubted the correctness of the decision in Thomas Varghese (supra).
3. We have heard the Senior Counsel Mr. G. Janardhana Kurup for the revision petitioner/accused and Ms. Saritha David Chungath for the respondent/complainant. The parties shall be referred to in this order as accused and complainant respectively for the sake of easy reference.
4. The facts scenario which is not in dispute can be summarised as follows:
Four cheques each for Rs. 5.5 lakh marked as Ext. P1 respectively in the four cases which have been disposed of by a common judgment are the subject matter of these prosecutions. A monetary transaction between the parties is admitted and is not disputed. That there is an undischarged liability for the accused to pay amounts to the complainant is admitted. That the cheques in question are drawn on cheque leaves issued by the Banker of the accused to the accused to operate his Bank account is again admitted. That the complainant is an affluent businessman and the accused is an educated cine is artist-also accepted and conceded. That there was correspondence between them about the discharge of the liability and time required for discharge of the liability is also admitted. That the cheques were successively presented for encashment and were dishonoured is admitted. That the cheques were finally presented for encashment and were dishonoured on 8.3.1999 is also admitted. That all the four cheques were dishonoured on 8.3.1999 on the twin grounds—“signature differs and funds insufficient” is again admitted. That the statutory time table has been scrupulously followed after that last dishonour is also conceded. That there was no funds available in the account to honour the cheque on the date of dishonour (8.3.1999) is also not disputed. That the accused had come to know of the earlier attempts for presentation of the cheque and dishonour of the same prior to its final presentation is also conceded. That the accused had not taken any steps after coming to know of such earlier instances of presentation and dishonour is also not disputed. Till now, no action has been taken against the complainant by the accused for alleged misuse of the cheques and that is also not disputed.
5. To the controversy now. The complainant alleged that the cheques were issued to him for the due discharge of a legally enforceable debt/liability. According to the complainant, the accused owed an amount of Rs. 20 lakh. It was not repaid in time. For return of the said amount of Rs. 20 lakh along with interest which was fixed at Rs. 2 lakh, four cheques each for Rs. 5.5 lakh (total Rs. 22 lakh) were allegedly Issued by the accused to the complainant. Those cheques are marked as Ext. P1 (four cheques) in this prosecution. Whe
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