The burden to prove that a cheque was not issued in discharge of liability lies with the accused, and the legal presumption under Section 139 of the Negotiable Instruments Act applies.

SANJAY KAROL, J

1. PARTIES, who were present in the Court, were asked to settle the matter, in terms of the judgment rendered by the apex Court in Damodar S. Prabhu versus Sayed Babalal H. (2010) 5 SCC 663. Learned counsel for the parties fully cooperated. But however, petitioner Subhash Chand (hereinafter referred to as the accused) had certain reservations.

2. AS such, the matter was admitted and with the consent of the parties taken up for hearing.

Respondent Shri Shadi Lal (hereinafter referred to as the complainant) filed a complaint, under the provisions of Negotiable Instruments Act, 1881 against the accused. As per the complaint, accused had issued a cheque dated 24.9.2010 for an amount of Rs.1,92,000/- towards discharge of his liability. Upon presentation, the same was not honoured. Though complainant sent a legal notice yet the amount was not paid.

3. AFTER evidence of the parties was closed, accused filed an application, under the provisions of Section 45 of the Indian Evidence Act, 1872, praying that the cheque in question be sent to a handwriting expert for comparing the handwritten contents of the cheques with the handwriting of the complainant.

4. SPECIFIC defence of the accused is that he never issued the cheque in question in favour of the complainant. He had signed the leaves of the cheque book and the body of the cheque was left blank. The cheque book was lost and the complainant who found the same has misused the same. In this regard, the bank was also informed. As such, a prayer was made to have the handwritten contents of the cheque compared with the handwriting of the complainant.

Complainant refuted the averments, categorically stating that the accused deals in the sale and purchase of vegetables. Complainant, who is an agriculturist, had supplied potatoes to the accused in September, 2010 and separate cheques were issued in partial discharge of liability towards the said commercial transactions.

5. THIS application stands dismissed by the learned Chief Judicial Magistrate, Lahaul & Spiti, at Kullu, vide impugned order dated 8.10.2012, passed in Cr.M.A No.23- IV/2012, titled as Shadi Lal versus Subhash Chand. Hence the present petition.

6. IT is urged on behalf of the accused that the trial Court erred in making the following observations:

"4. Be it stated that the accused has not disputed his signatures on the cheque in dispute. The specific contention of the accused is that his signed cheque book containing the cheque in dispute, was lost somewhere. Meaning thereby the accused intends to convey that the complainant found his lost cheque book containing cheque in dispute. Such contention of the accused is hypothetical. The accused neither reported the matter to the police nor to the bank in this behalf. What was the necessity to keep signed cheque in the cheque book. As per the complainant the accused is a business man, deals in sale and purchase of vegetables, potatoes etc and in the month of September, 2010, he purchased potatoes from the complainant and issued the cheque in dispute in his favour. In such circumstances, the hypothetical proposition propounded by the accused that the complainant found lost signed cheque in dispute and misused in the present complaint is not at all acceptable and as such, the instant application for comparison of handwriting on the body of the cheque is devoid of merits."

It is also urged that keeping in view the ratio of law laid down in Pawan Kumar versus State of Haryana, (2003) 11 SCC 241; and Damara Venkata Kurali Krishna Rao versus Gurujupalli Satvathamma, (2008) 12 SCC 170, application ought to be allowed.

7. RECORD reveals that the complaint was filed on 25.3.2011; complainant's witnesses were examined on 5.6.2012; statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, 1973 was recorded on 9.7.2012; in his defence, accused examined one witness on 4.9.2012 and also closed his defence. It was on this day that the accus