KERALA HIGH COURT
R. Narayana Pisharadi, J.
P.G. Joshy – – – Appellant
versus
Jose Varghese and Anr. – – Respondents
Crl.A.No.1296 of 2008
Decided on 19.9.2019

IMPORTANT POINTS
(1) Subsequent filling up of an unfilled signed cheque does not amount to alteration of cheque. –
(2) Dishonour of cheque – Court need not insist in every case that accused should disprove non-existence of consideration and debt by leading direct evidence because existence of negative evidence is neither possible nor contemplated.
(3) Accused cannot be compelled to be examined as a witness.

Headnote:

(A) Negotiable Instruments Act, 1881 – Sections 138 and 139 – Dishonour of cheque – A person who signs a cheque and makes it over to payee remains liable under Section 138 of Act unless he adduces evidence to rebut presumption that cheque was issued for payment of a debt or in discharge of a liability – It is immaterial that cheque was filled up by any person other than drawer if cheque is duly signed by drawer – If a signed blank cheque is voluntarily presented to a payee, towards some payment, payee may fill up amount and other particulars in cheque – This in itself would not invalidate cheque – Onus would still be on accused to prove, by adducing evidence, that cheque was not issued in discharge of a debt or liability – Even a blank cheque leaf, voluntarily signed and handed over by accused which is towards some payment, would attract presumption under Section 139 of Act, in absence of any cogent evidence to show that cheque was not issued in discharge of a debt – In absence of any evidence with regard to circumstances in which a blank signed cheque was delivered by accused to complainant, it may reasonably be presumed that cheque was filled in by complainant being payee, in presence of accused being drawer, at his request and/or with his acquiescence – Subsequent filling up of an unfilled signed cheque does not amount to alteration of cheque.

Held: – A person who signs a cheque and makes it over to the payee remains liable under Section 138 of the Act unless he adduces evidence to rebut the presumption that the cheque was issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque was filled up by any person other than the drawer, if the cheque is duly signed by the drawer. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars in the cheque. This in itself would not invalidate the cheque. The onus would still be on the accused to prove, by adducing evidence, that the cheque was not issued in discharge of a debt or liability. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract the presumption under Section 139 of the Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In the absence of any evidence with regard to the circumstances in which a blank signed cheque was delivered by the accused to the complainant, it may reasonably be presumed that, the cheque was filled in by the complainant being the payee, in the presence of the accused being the drawer, at his request and/or with his acquiescence. The subsequent filling up of an unfilled signed cheque does not amount to an alteration of the cheque (See Bir Singh v. Mukesh Kumar, AIR 2019 SC 2446).

– – (Para 11)

(B) Negotiable Instruments Act, 1881 – Sections 138 and 139 – Criminal Procedure Code, 1973 – Section 378 – Dishonour of cheque – Appeal against acquittal – Merely because defence witnesses support case of accused, they cannot be held to be untruthful – What is to be considered is intrinsic worth of testimony of a witness – Defence witnesses are entitled to equal treatment with those of prosecution – No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness – It is judicial scrutiny which is warranted in respect of depositions of all witnesses – Different yardsticks cannot be prescribed for appreciation of testimony of different categories of witnesses.

Held: Merely because defence witnesses support the case of the accused, they cannot be held to be untruthful. What is to be considered is the intrinsic worth of the testimony of a witness. Defence witnesses are entitled to equal treatment with those of the prosecution. Quite often, they tell lies, but so do the prosecution witnesses (See Dudh Nath Pandey v. State of U.P. AIR 1981 SC 911). Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, constitute oral evidence in the case. The scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses. Different yardsticks cannot be prescribed for appreciation of the testimony of different categories of witnesses (See State of U.P v. Babu Ram : AIR 2000 SC 1735). – (Para 16)

(C) Negotiable Instruments Act, 1881 – Sections 138 and 139 – Criminal Procedure Code, 1973 – Section 378 – Dishonour of cheque – Appeal against acquittal – Court need not insist in every case that accused should disprove non-existence of consideration and debt by leading direct evidence because existence of negative evidence is neither possible nor contemplated – At the same time, bare denial of passing of consideration and existence of debt, would not serve the purpose of accused – Something which is probable has to be brought on record for getting burden of proof shifted to complainant – To disprove presumption, accused should bring on record such facts and circumstances upon consideration of which Court may either believe that consideration and debt did not exist or their non-existence was so probable that a prudent man would under circumstances of case, act upon plea that they did not exist – Apart from adducing direct evidence to prove that cheque in question was not supported by consideration or that he had not incurred any debt or liability, accused may also rely upon circumstantial evidence – If circumstances so relied upon are compelling, burden would shift again on to complainant – Complaint and statutory notice do not disclose how or in what manner, accused incurred any debt or liability to complainant – There is no averment in complaint as to transaction between complainant and accused or nature of debt or liability incurred by accused – In absence of any reliable evidence adduced by complainant to prove transaction alleged by him, he has failed to prove that accused committed offence punishable under Section 138 of Act – Appeal dismissed. – – – – (Paras 21, 26, 30 and 31)

(D) Criminal Procedure Code, 1973 – Section 315(1) – Constitution of India – Article 20(3) – Right against self-incrimination – Accused cannot be compelled to be examined as a witness – No adverse inference can be drawn against accused merely because he has chosen to abstain from witness box – No court can comment on choice made by accused to abstain from witness box – Failure or omission of accused to examine himself as a witness shall not attract any comment from court.

Held: – – It is basic criminal jurisprudence that an accused cannot be compelled to be examined as a witness. No adverse inference can be drawn against the accused merely because he has chosen to abstain from the witness box (See Kashiram v. State of M.P : AIR 2001 SC 2902). The right of the accused to keep silence finds its expression in the provision contained in Section 315 (1) of the Code. It is the mandate of the proviso to Section 315(1) of the Code that the failure of the accused to give evidence shall not be subject to any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial. It is immaterial that, in a case, the burden is on the accused to prove a fact. No court can comment on the choice made by the accused to abstain from the witness box. Failure or omission of the accused to examine himself as a witness shall not attract any comment from the court. No adverse inference can be made against the accused on his failure to enter the witness box. – – – – – (Para 24)

Result: Appeal dismissed.