Back
HIGH COURT OF MADHYA PRADESH
B.D. Rathi, J.
Sunita Dubey (Smt.) v. Hukum Singh Ahirwar
Criminal Revisions No.56 and 59 of 2014 (Gwalior) : against order dated 17.12.2013, passed by Fourth Additional Sessions Judge, Vidisha in Criminal Revisions No.118/2013 and 119/2013;
Decided on 1.12.2014
Held : Once the execution is admitted, it shall be taken that the cheque was issued by the accused in favour of the complainant towards the discharge of the liability.
Section 20 of the Act declares that inchoate instruments are also valid and legally enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability.
Though the respondent-accused had admitted that the signed cheque was issued by him but it was denied that the same was issued voluntarily by him in favour of the petitioner against due payment. On the other hand, it was sought to be contended that the cheque had been issued for the security purposes but was misused by the petitioner-complainant after having filled up the details by herself. But as discussed above, as per section 20 of the N.I. Act, an individual is authorised to complete the inchoate instrument deliver to him by filling up the blanks. Moreover, a blank cheque could be filled up by the ‘Holder thereof’, which will be a valid instrument in the eye of Law.
When case itself was of accused that the cheques were filled by the complainant then in view of defence of the accused-persons certainly, the complainant-petitioner has right to get benefit under section 20 of the N.I. Act and there is no need to examine the Handwriting Expert to verify whether the contents of the cheques were written by the complainant or not. 2011(4) MPHT 178 and 2010(5) MPHT 104 distinguished. 2007(1) MPLJ 84 and AIR 1954 SC 455 referred to.
(2) Evidence Act, 1872 -- S.45 -- Negotiable Instruments Act, 1881 -- Ss.20 and 138 -- complaint under section 138 -- blank cheque issued signed by accused -- it is admitted by accused -- but entries in cheque about liability denied -- application for examining such entries by Handwriting Expert -- rightly rejected by trial Court -- revisional Court committed error in allowing such application -- blank cheque can be filled up by holder thereof -- complainant has right to get benefit under section 20 of N.I. Act -- no need to examine Handwriting Expert. [Paras 10 to 13
¼1½ ijØkE; fy[kr vf/kfu;e] 1881 && /kkjk 20 rFkk 138 && mica/k ds v/khu ifjokn && fujad rFkk gLrk{kfjr pSd tkjh djuk && vfHk;qDr }kjk Lohdkj fd;k x;k && fdarq pSd esa nkf;Ro ds fo”k; varfuZfo”V izfof”V;ksa ls bUdkj fd;k x;k && fujad pSd dh iwfrZ mlds /kkjd }kjk dh tk ldrh gS && tks fof/k dh n`f”V esa fof/kekU; fy[kr gS && ifjoknh dks vf/kfu;e dh /kkjk 20 ds v/khu Qk;nk izkIr djus dk vf/kdkj gS && gLrys[k fo’ks”kK ds ijh{k.k dh vko’;drk ughaA vfHkfu/kkZfjr % T;ksagh pSd dk fu”iknu Lohdkj fd;k x;k] ;g ekuk tk,xk fd vfHk;qDr }kjk ifjoknh ds i{k esa nkf;Ro ds mUekspu ds fy, pSd tkjh fd;k x;k FkkA vf/kfu;e dh /kkjk 20 ?kksf”kr djrh gS fd v/kwjh fy[krsa Hkh fof/kekU; vkSj fof/k }kjk izorZuh; gSA gLrk{kfjr fujad pSd dh fLFkfr esa] ys[khoky us mijoky dks eatwj nkf;Ro dh iwfrZ djus dk izkf/kdkj fn;k gS ;|fi izR;Fkh&vfHkqDr us ;g Lohdkj fd;k gS mlds }kjk gLrk{kfjr pSd tkjh fd;k x;k Fkk fdarq ;g bUdkj fd;k x;k Fkk fd mlds }kjk ;kph ds i{k esa ogh cdk;k Hkqxrku ds fy, LosPNk ls tkjh fd;k x;k FkkA blds vfrfjDr] ;g izfrokn djuk pkgk x;k Fkk fd pSd izfrHkwfr ds iz;kstuksa ds fy, tkjh fd;k x;k Fkk fdarq ;kph@ifjoknh }kjk Lo;a ds }kjk foLr`r fooj.k dh iwfrZ djus ds i’pkr~ nq:i;ksx fd;k x;k FkkA fdarq tSlh mi;ZqDr foospuk dh xbZ gS] ijØkE; fy[kr vf/kfu;e dh /kkjk 20 ds vuqlkj] O;fDr mls lkSih xbZ v/kwjh fy[kr dks iw.kZ djus vkSj fujad dh iwfrZ djus ds fy, izkf/kd`r gSA blds vfrfjDRk] fujad pSd dh iwfrZ ^^mlds /kkjd^^ }kjk dh tk ldrh gS] tks fof/k dh n`f”V esa fof/kekU; fy[kr gksxhA tc Lo;a vfHk;qDr dk izdj.k ;g Fkk fd pSdksa dh iwfrZ ifjoknh }kjk dh xbZ Fkh rc fuf’pr :i ls vfHk;qDr&OfDr;ksa dh izfrj{kk ds n`f”Vdks.k ls ifjoknh&;kph dks ijØkE; fy[kr vf/kfu;e dh /kkjk 20 dk Qk;nk izkIr djus dk vf/kdkj gS vkSj pSdksa dh varoZLrq D;k ifjoknh }kjk fy[kh xbZ Fkh ;k ugh bldk gLrys[k fo’ks”kK }kjk ijh{k.k dj lR;kfir djkus dh vko’;drk ugha gSA 2011¼4½ ,e ih ,p Vh 178 rFkk 2010¼5½ ,e ih ,p Vh 104 izHksfnrA 2007¼1½ ,e ih ,y ts 84 rFkk , vkb vkj 1954 ,l lh 455 fufnZ”VA ¼2½ lk{; vf/kfu;e] 1872 && /kkjk 45 && ijØkE; fy[kr vf/kfu;e] 1881 && /kkjk 21 rFkk 138 && /kkjk 138 ds v/khu ifjokn && vfHk;qDr }kjk gLrk{kfjr fujad pSd tkjh fd;k x;k && ;g vfHk;qDr }kjk Lohdkj fd;k x;k & fdarq nkf;Ro ds fo”k; esa pSd esa izfof”V;ksa ls bUdkj fd;k x;k & gLrys[k fo’ks”kK }kjk ,slh izfof”V;ksa ds ijh{k.k ds fy, vkosnu && fopkj.k U;k;ky; }kjk lgh gh [kkfjt fd;k x;k && ,slk vkosnu eatwj djus esa iqujh{k.k U;k;ky; us =qfV dh gS && fujad pSd dh iwfrZ mlds /kkjd }kjk dh tk ldrh gS && ifjoknh dks ijØkE; fy[kr vf/kfu;e dh /kkjk 20 dk Qk;nk izkIr djus dk vf/kdkj gS && gLrys[k fo’ks”kK dk ijh{k.k djus dh vko’;drk ughA ¼iSjk 10 ls 13
1. As the grievance raised in the aforesaid two cases is identical and of similar nature, heard together and disposed of by this common order.
2. Both the revisions have been preferred under section 397/401 of the Code of Criminal Procedure, 1974 in short the ‘Code’ against an order dated 17.12.2013 passed by the Fourth Additional Sessions Judge Vidisha District Vidisha (M.P.), in Criminal Revisions No.118/2013 and 119/2013 whereby the applications of the respondents-accused under section 45 of the Indian Evidence Act were allowed by setting aside the orders of dismissal passed by the trial Court dated 6.8.2013 in Criminal Cases No. 232/12 and 475/12.
3. For facility of reference, the facts are being taken from Criminal Revision No.56/14. As per the case of the petitioner-complainant, she advanced a sum of Rs.2,00,000/- to the respondent-accused and in turn the respondent-Hukum Singh issued a cheque No.892743 dated 12.9.2011 in favour of the complainant-petitioner drawn on State Bank of India Branch Vidisha. When the petitioner presented the said cheque at the concerning Bank same came to be dishonoured for want of sufficient fund in the account of the holder of the cheque. The complainant then issued notice to the accused, demanding payment within fifteen days from the receipt of the notice failing which the respondent-accused was liable to be prosecuted for having committed offence punishable under section 138 of the Negotiable Instruments Act, but as the respondent-accused refused to pay even after receipt of the notice, a complaint under section 138 of the Negotiable Instruments Act was filed by the petitioner in the Court of the Judicial Magistrate, against him.
4. During the course of proceedings of the trial in the complaint case, the accused moved an application under section 45 of the Evidence Act. The gist of the application is to the effect that the accused had taken only a sum of Rs.1,50,000/- on credit out of which Rs.96,000/- was paid by him to the complainant and he was further ready to pay balance amount of Rs.54,000/-. He denied to have taken a sum of Rs.2,00,000/- from the complainant. He also denied to issue a cheque against the debt of Rs.2,00,000/- in favour of the complainant on 12.9.2011. On the other hand, he stated that the complainant had taken two blank cheques from him as a security bearing No.221478 and 892743 and same were signed by him as account holder. It is submitted that the complainant after filling the date of 12.9.2011 and the amount of Rs.2,00,000/- in Cheque No.892743 presented at the bank for encashment. Under these circumstances in order to verify the correctness of the alleged act of the complainant the respondent-accused moved an application under section 45 of the Evidence Act before the trial Court for seeking the relief to examine insertion of the entries in the cheque through Handwriting Expert. Said application was rejected vide order dated 6.8.2013 passed in Criminal Case No.232/12. Against the dismissal order dated 6.8.2013, the accused preferred Criminal Revision No.119/13 before the revisional Court. The learned Revisional Court after considering the arguments of both the sides, allowed the prayer of the accused vide impugned order, assailed herein, hence, the revision before this Court.
5. Similarly, same application under section 45 of the Evidence Act was filed in Criminal Case No.475/12 by the respondent-accused Devkishan by alleging that Cheque No.540211 was signed by him but other entries were full filled by the complainant, therefore, to verify the alleged act of the complainant an expert opinion may be called. The application was dismissed against which Criminal Revision No.118/13 was preferred. Same was allowed and the impugned order was passed.
6. Learned counsel for the petitioner contended that in the application filed under section 45 of the Evidence Act it was admitted by the accused that the cheque was signed by him, therefore, the revisional Court was in erro
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
