MADHYA PRADESH HIGH COURT
G.S. Ahluwalia, J.
Shrimati Ragini Gupta – Appellant
versus
Piyush Dutt Sharma – Respondent
Criminal Revision No.5263 of 2018
Decided on 7.3.2019

IMPORTANT POINT
Dishonour of cheque – Mere non-filing of Income Tax Return would not automatically dislodge source of income of complainant.

Headnote:

(A) Negotiable Instruments Act, 1881 – Section 138 read with Sections 118 and 139 – Dishonour of cheque – In a trial under Section 138 of Act presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once execution of negotiable instrument is either proved or admitted – As soon as complainant discharges burden to prove that instrument was executed by accused, rules of presumptions under Sections 118 and 139 of Act help him shift burden on accused – Presumptions will live, exist and survive and shall end only when contrary is proved by accused, that is, cheque was not issued for consideration and in discharge of any debt or liability – A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists.

Held: Even in the cross-examination of the respondent no suggestion was given to him that the cheque in question does not bear the signature of the revisionist. A single suggestion was given to the respondent that he has forged the signature of the revisionist on the cheque in question, which was denied by the respondent. The respondent had also clarified in his crossexamination that out of total amount of Rs.10,00,000/-, he had borrowed Rs.6 lac from his father and he was having Rs.4 lac with him. It is further submitted by the counsel for the respondent that after the evidence of the respondent was recorded, he lost his father, therefore, his father could not be examined. Thus, it is clear that no specific suggestion was given to the respondent that the cheque in question does not bear the signature of the revisionist but a vague suggestion was given that the signature of the revisionist was forged on the cheque in question. For the first time, in her evidence, it was stated by the revisionist that the cheque in question does not bear her signature and accordingly, immediately thereafter, the respondent filed an application under Section 45 of Evidence Act for sending the cheque in dispute to the Handwriting Expert for examination of the signatures of the revisionist. The said application was decided by trial Curt by order dated 2nd January, 2018. However, the crux of the matter is that the respondent had taken the stand of sending the cheque in question to the Handwriting Expert for examination of the signatures of the revisionist but the revisionist did not file any application under Section 45 of Evidence Act for sending the disputed signatures to the Handwriting Expert. Under these circumstances, this Court is of the considered view that the remedy available to the respondent for verification of signatures on the disputed cheque was availed by him, whereas the revisionist except by denying her signatures in her defence evidence, did not take any step for sending the same to the Handwriting Expert for examination of her signatures. Furthermore, in the present case, the cheque in question was not returned by the Bank on the ground of difference in her signatures. (Para 15)

(B) Negotiable Instruments Act, 1881 – Section 138 – Dishonour of cheque – Punishment of admonition was given as well as compensation of Rs.12,69,000/- awarded – Mere non-filing of Income Tax Return would not automatically dislodge source of income of complainant – Non-payment of Income Tax is a matter between revenue and assessee – If assessee has not disclosed his income in Income Tax Return, then Income Tax Department is well within its rights to reopen assessment of income of assessee and to take action as per provisions of Income Tax Act – Whether there was any loan transaction between parties or not and whether there was any legally recoverable debt or not, is subject-matter which can be ascertained in light of entire case led by parties – Where accused has failed to satisfactorily explain circumstances under which cheque was issued by accused or misused by complainant, then it can be safely inferred/ presumed that cheque was issued in discharge of legally recoverable dept/liability – Revisionist had not disputed her signature on cheque but she had merely stated that other entries in cheque were filled up either by the respondent or he got it filled from some other person. Merely because the other entries in cheque were not filled by accused, would not absolve her from her liability arising from cheque – Section 20 of Negotiable Instruments Act draws presumption in favour of holder of cheque – Cheque in question was not returned by Bank on the ground of difference in her signatures – Trial Court as well as Appellate Court did not commit any mistake in holding that cheque was issued by revisionist in discharge of legal liability which was returned by Bank on instructions of revisionist – Revisionist is held guilty for offence under Section 138 of Negotiable Instruments Act – – Revision Petition dismissed.

Held: It is submitted by learned Senior Counsel for the revisionist that as the respondent has never disclosed his source of income in the Income Tax Return and the respondent has never filed his Income Tax Return, therefore, it should be presumed that he did not have any source of income. This Court is of the considered opinion that mere non-filing of Income Tax Return would not automatically dislodge the source of income of the complainant. Non-payment of Income Tax is a matter between the revenue and the assessee. If the assessee has not disclosed his income in the Income Tax Return, then the Income Tax Department is well within its rights to reopen the assessment of income of the assessee and to take action as per the provisions of Income Tax Act. However, non-filing of Income Tax Return by itself would not mean that the complainant had no source of income and thus, no adverse inference can be drawn in this regard only because of absence of Income Tax Return. Whether there was any loan transaction between the parties or not and whether there was any legally recoverable debt or not, is the subject-matter which can be ascertained in the light of entire case led by the parties. Where the accused has failed to satisfactorily explain the circumstances under which the cheque was issued by the accused or misused by the complainant, then it can be safely inferred/ presumed that the cheque was issued in discharge of legally recoverable dept/liability. It is the case of the revisionist that the respondent had not given loan to the revisionist. The cheque was stolen from the shop of the husband of the revisionist and it does not bear her signature, whereas the evidence which has come on record, clearly establishes that the respondent had family relations with the revisionist and he was frequently visiting the house of the revisionist, therefore, it cannot be said that the respondent was not known to the revisionist. The revisionist, in her registered notice Ex.P7, had not disputed her signature on the cheque but she had merely stated that the other entries in the cheque were filled up either by the respondent or he got it filled from some other person. Merely because the other entries in the cheque were not filled by the accused, would not absolve her from her liability arising from the cheque. Section 20 of the Negotiable Instruments Act draws a presumption in favour of the holder of the cheque.

Even in the cross-examination of the respondent no suggestion was given to him that the cheque in question does not bear the signature of the revisionist. A single suggestion was given to the respondent that he has forged the signature of the revisionist on the cheque in question, which was denied by the respondent. The respondent had also clarified in his crossexamination that out of total amount of Rs.10,00,000/-, he had borrowed Rs.6 lac from his father and he was having Rs.4 lac with him. It is further submitted by the counsel for the respondent that after the evidence of the respondent was recorded, he lost his father, therefore, his father could not be examined. Thus, it is clear that no specific suggestion was given to the respondent that the cheque in question does not bear the signature of the revisionist but a vague suggestion was given that the signature of the revisionist was forged on the cheque in question. For the first time, in her evidence, it was stated by the revisionist that the cheque in question does not bear her signature and accordingly, immediately thereafter, the respondent filed an application under Section 45 of Evidence Act for sending the cheque in dispute to the Handwriting Expert for examination of the signatures of the revisionist. The said application was decided by trial Curt by order dated 2nd January, 2018. However, the crux of the matter is that the respondent had taken the stand of sending the cheque in question to the Handwriting Expert for examination of the signatures of the revisionist but the revisionist did not file any application under Section 45 of Evidence Act for sending the disputed signatures to the Handwriting Expert. Under these circumstances, this Court is of the considered view that the remedy available to the respondent for verification of signatures on the disputed cheque was availed by him, whereas the revisionist except by denying her signatures in her defence evidence, did not take any step for sending the same to the Handwriting Expert for examination of her signatures. Furthermore, in the present case, the cheque in question was not returned by the Bank on the ground of difference in her signatures.

This Court is of the considered opinion that the Trial Court as well as the Appellate Court did not commit any mistake in holding that the cheque bearing no.119954 was issued by the revisionist in discharge of legal liability which was returned by the Bank on the instructions of the revisionist. Accordingly, the revisionist is held guilty for offence under Section 138 of Negotiable Instruments Act.

With the aforesaid observations, this revision fails and is hereby. – – – – – (Paras 13, 15, 23 and 27)

Result: Revision Petition dismissed.