Point of Law: Section 139 of Negotiable Instruments Act raises presumption that a drawer of handing over a cheque signed by him is liable unless it is proved that cheque was not in discharge of debt or any other legal liability.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, petitioner has assailed the order dated 30.11.2021, passed by learned Judicial Magistrate 1st Class, Jubbal, District Shimla, in Criminal Misc. Application No. 14/4 of 2020, whereby the application of the petitioner under Section 311-A of the Code of Criminal Procedure has been dismissed.

2. Petitioner herein is facing prosecution for offence under Section 138 of the Negotiable Instruments Act before the learned trial Court in a complaint filed by the respondent. Respondent/Complainant concluded his evidence. Petitioner after availing number of opportunities to lead evidence came up with an application under Section 311-A of the Negotiable Instruments Act before the learned trial Court prayed inter alia as under:-

“Therefore it is most respectfully prayed that the signature of the accused and the date of the cheque in dispute must be examined by the expert and the date filled on the cheque be kindly examined by the handwriting expert to prove the cheque was filled by the accused himself and also the opinion how old is the cheque and the handwriting of the complainant be also matched with the cheque. Any other relief which this learned court deems fit and proper be also granted in favour of the accused/applicant.”

3. The respondent/complainant contested the application. The learned trial Court dismissed the application vide impugned order by holding that the petitioner/accused had not disputed his signatures on the cheque and thus the comparison of handwriting on other portions of the cheque was immaterial. It also weighed with the learned trial Court that the application appeared to have been moved only to delay the proceedings as the petitioner/accused had already availed five opportunity to lead defence evidence before moving the application.

4. I have heard Ms. Anu Tuli, Advocate, learned counsel for the petitioner and Mr. Ravi Tanta, Advocate, learned counsel for the respondent and have also gone through the entire record carefully.

5. Ms. Anu Tuli, Advocate, learned counsel for the petitioner has contended that the impugned order was wrong inasmuch as the ground on which the application was filed, was not rightly appreciated by learned trial Court. The case put forth by the learned counsel for the petitioner is that the petitioner/accused had no legal liability towards the complainant/respondent and the cheque in question was being misused.

6. On the other hand, Mr. Ravi Tanta, Advocate, learned counsel for the respondent/complainant has submitted that the petitioner/accused had been adopting delaying tactics and there was no merit in his contention. He further submitted that the comparison of handwriting on the cheque in the facts and circumstances of the case will be irrelevant especially in view of the fact that the petitioner/accused has not disputed his signatures on the cheque.

7. Petitioner/accused has placed on record a copy of statement of respondent/complainant recorded by the learned trial Court on 14th September, 2018. While cross-examining the complainant, no dispute has been raised in respect of the signatures of petitioner/accused on the cheque. Rather, it was suggested to the complainant/respondent that the cheque was given in lieu of security. A question was also asked that the accused had already made payment of Rs. Eight lakhs.

8. Thus, it is clear that the petitioner/accused has not disputed his signatures on the cheque. Assuming, that the writing on other portions of cheque is not in the hand of accused, it will not make any effect on the merits of the case. The issue that is required to be adjudicated by the learned trial Court is regarding the existence of legal liability of accused/petitioner in favour of the complainant/respondent. Section 139 of the Negotiable Instruments Act raises presumption that a drawer of handing over a cheque signed by him is liable unless it is proved that the cheque was not in discharge of debt or any other legal liability.