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IN THE HIGH COURT OF MADHYA PRADESH
Dinesh Kumar Paliwal, J.
Vikrambhai Patel (Shri) v. M/s. Praveen Group of Constructions
Miscellaneous Criminal Case No. 1010 of 2025 (Jabalpur); Decided on 21.3.2025
(1) Criminal P. C., 1973 -- S. 482 -- maintainability of second application -- point with regard to cognizance was raised in first application -- it was dismissed as withdrawn -- second application with regard to cognizance not maintainable. (1975) 3 SCC 706 distinguished. 1992 (Supp.) MWN (Cr.) Cal., 2023 LiveLaw (SC) 935 and 2021 SCC Online SC 559 referred to. [Paras 7, 9 & 11
(2) Evidence Act, 1872 -- Ss. 45 and 73 -- Negotiable Instruments Act, 1881 -- S. 138 -- application for opinion of handwriting expert -- ground that cheque was not filled by applicant-accused -- it is the defence of applicant-accused that he had complained to police about theft of cheque -- held -- from recital of complaint itself, it is apparent that cheque had signature of applicant -- it is admitted u/s. 313 of CrPC that cheque was issued by him and it bears his signature -- in absence of evidence of exercise of undue influence or coercion or denial of his own signature on cheque, no useful purpose will be served by getting cheque examined by handwriting expert. (2008) 5 SCC 633 and (2007) 2 SCC 258 distinguished. ILR [2008] 2 MP 1309 and 2007 (2) MPHT 182 relied on. [Paras 14, 15, 19 & 20
(3) Negotiable Instruments Act, 1881 -- S. 138 -- contention that complainant has misused cheque -- opportunity must be granted to accused for adducing evidence in rebuttal thereof -- as law places burden on accused, he must be given opportunity to discharge it -- accused has right to fair trial. (2008) 5 SCC 633 followed. [Para 21
(4) Negotiable Instruments Act, 1881 -- Ss. 20 and 139 -- presumption -- by reason S. 20, a right is created in holder of cheque -- holder is authorized to complete an incomplete negotiable instrument -- blank cheque filled up by 'holder thereof' will be a valid instrument in the eye of law -- even if body of cheque was not filled by applicant-accused and was filled by complainant, the statutory presumption cannot be obliterated. (2008) 5 SCC 633, 2016 (4) RCR (Civil)487, (2019) 4 SCC 197 and (2022) LiveLaw (SC) 714 followed. 2015 (1) MPLJ 574 relied on. [Para 26
(5) Evidence Act, 1872 -- Ss. 45 and 73 -- Negotiable Instruments Act, 1881 -- Ss. 138, 118 and 139 -- cheque was admittedly issued by applicant-accused and it bears his signature -- no useful purpose would be served by sending cheque to handwriting expert -- once cheque is issued, a liability is imposed upon applicant-accused in terms of Ss. 118 and 139 -- no error committed by trial Court in dismissing application. [Para 29
(6) Criminal Trial -- closure of right of defence -- trial Court stated in impugned order that if defendantaccused failed to produce his evidence, his evidence may be closed -- order cannot be quashed as it has not closed right of defendant-accused to adduce defence evidence -- challenge to said order is premature. [Para 30
¼1½ naM çfØ;k lafgrk] 1973 && /kkjk 482 && f}rh; vkosnu pyus ;ksX; gksuk && laKku ds laca/k esa ç'u çFke vkosnu esa mBk;k x;k Fkk && og vkosnu çR;kár fd, tkus ds dkj.k [kkfjt gqvk && laKku ds laca/k esa f}rh; vkosnu pyus ;ksX; ughaA ¼1975½ 3 ,llhlh 706 çHksfnrA 1992 ¼lIyh-½ ,eMCY;w,u ¼fØ-½ dy- 2023 ykboy‚ ¼,llh½ 935 rFkk 2021 ,llhlh v‚uykbu ,llh 559 fufnZ"VA ¼iSjk 7] 9 ,oa 11
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 45 rFkk 73 && ijØkE; fy[kr vfèkfu;e] 1881 && /kkjk 138 && gLrys[k fo'ks"kK dh jk; ds fy, vkosnu vk/kkj fd pSd vkosnd&vfHkqä }kjk ugha Hkjk x;k Fkk && vkosnd&vfHkqä dh çfrj{kk gS fd mlus pSd dh pksjh ds ckjs esa iqfyl ls f'kdk;r dh Fkh && vfHkfu/kkZfjr && Lo;a f'kdk;r ds o.kZu ls çdV fd pSd ij vkosnd ds gLrk{kj Fks && naM çfØ;k lafgrk dh /kkjk 313 ds v/khu Lohdkj fd;k x;k fd pSd mlds }kjk tkjh fd;k x;k Fkk vkSj ml ij mlds gLrk{kj gSa && vlE;d~ çHkko ;k çihM+u vFkok pkSd ij Lo;a ds gLrk{kj ls bUdkj ds vHkko esa gLrys[k fo'ks"kK ls pSd dh tk¡p djkus ls dksbZ mi;ksxh ç;kstu iw.kZ ugha gksxkA ¼2008½ 5 ,llhlh 633 rFkk ¼2007½ 2 ,llhlh 258 çHksfnrA vkb,yvkj ¼2008½ 2 ,eih 1309 rFkk 2007 ¼2½ ,eih,pVh 182 voyafcrA ¼iSjk 14] 15] 19 ,oa 20
¼3½ ijØkE; fy[kr vf/kfu;e] 1881 && /kkjk 138 && çfrokn fd ifjoknh us pSd dk nq:i;ksx fd;k gS && vfHk;qä dks blds [kaMu esa lk{; is'k djus dk volj fn;k tkuk vko';d gS && fof/k esa vfHk;qä ij Hkkj Mkyk x;k gS blfy, mls mldk fuoZgu djus dk volj fn;k gh tkuk gksxk && vfHk;qä dks _tq fopkj.k dk vf/kdkj gSA ¼2008½ 5 ,llhlh 633 vuqlfjrA ¼iSjk 21
¼4½ ijØkE; fy[kr vf/kfu;e] 1881 && /kkjk 20 rFkk 139 && mi/kkj.kk && /kkjk 20 ds dkj.k pSd ds /kkjd ds i{k esa vf/kdkj l`ftr gksrk gS && /kkjd viw.kZ ijØkE; fy[kr dks iw.kZ djus ds fy, çkf/k—r gS && ßmlds /kkjdß }kjk Hkjk x;k dksjk pSd fof/k dh –f"V esa fof/kekU; fy[kr gksxk && pSd dh fo"k;oLrq vkosnd&vfHkqä }kjk ugha Hkjh xbZ gks vkSj ifjoknh }kjk Hkjh xbZ gks rc Hkh dkuwuh mi/kkj.kk feVkbZ ugha tk ldrhA ¼2008½ 5 ,llhlh 633] 2016 ¼4½ vkjlhvkj ¼flfoy½ 487] ¼2019½ 4 ,llhlh 197 rFkk ¼2022½ ykboy‚ ¼,llh½ 714 vuqlfjrA 2015 ¼1½ ,eih,yts 574 voyafcrA ¼iSjk 26
¼5½ lk{; vf/kfu;e] 1872 && /kkjk 45 rFkk 73 && ijØkE; fy[kr vfèkfu;e] 1881 && /kkjk 138] 118 rFkk 139 && pSd Loh—rr% vkosnd&vfHkqä }kjk tkjh fd;k x;k Fkk rFkk ml ij mlds gLrk{kj gSa && gLrys[k fo'ks"kK dks pSd Hkstus ls dksbZ mi;ksxh ç;kstu iw.kZ ugha gksxk && pSd tkjh dj fn, tkus ij /kkjk 118 rFkk 139 ds vuqlkj vkosnd&vfHkqä ij nkf;Ro vf/kjksfir gks tkrk gS && vkosnu [kkfjt dj fopkj.k U;k;ky; }kjk dksbZ xyrh ugha dh xbZA ¼iSjk 29
¼6½ nkafMd fopkj.k && çfrj{kk ds vf/kdkj dk lekiu && fopkj.k U;k;ky; us vkf{kIr vkns'k esa dgk fd ;fn çfroknh&vfHkqä viuk lk{; is'k djus esa vlQy jgsxk rks mldk lk{; lekIr fd;k tk ldrk gS && vkns'k vfHk[kafMr ugha fd;k tk ldrk D;ksafd mlds }kjk çfroknh&vfHkqä dk çfrj{kk lk{; is'k djus dk vf/kdkj lekIr ugha fd;k x;k && mä vkns'k ij vk{ksi le;iwoZ gSA ¼iSjk 30
ORDER
1. The present petition has been filed to quash orders dated 11.4.2023, 6.12.2024 and 19.12.2024 passed by learned Judicial Magistrate, First Class, Jabalpur in SCNIA Case No. 600/2023 (Praveen Group of Constructions through Proprietor Praveen Kumar Patel v. Vikram Bhai Vallabh Bhai Patel) whereby cognizance has been taken against the petitioner herein on 11.4.2023 for commission of offence under section 138 of the Negotiable Instruments Act and order dated 6.12.2024 whereby an application under section 45 and 73 of the Evidence Act filed by the petitioner/accused has been dismissed. As the petitioner has sought time till March, 2025 to produce defence evidence as accused is in some foreign country, by the order dated 19.12.2024, the trial Court has directed accused to produce his defence evidence otherwise his defence will be closed.
2. The aforesaid orders have not been challenged before the Court of Session by filing revision but have been directly challenged before this Court and petitioner has prayed to set aside the aforesaid orders.
3. The brief facts of the case are that the petitioner is facing trial in SCNIA Case No.600/2023 (Praveen Group of Constructions through Proprietor Praveen Kumar Patel v. Vikram Bhai Vallabh Bhai Patel) for commission of offence under section 138 of the Negotiable Instruments Act (hereinafter referred to as "N.I. Act".) before JMFC, Jabalpur. It is alleged that petitioner accused had issued a cheque dated 28.11.2022 of HDFC, City Road, Ahmedabad for a sum of Rs.27,25,000/- in favour of the respondent/complainant. When cheque was presented by the complainant in the Bank for encashment, same stood dishonoured on 13.1.2023 with an endorsement of insufficient fund. A complaint was filed by the respondent-complainant under section 200 of Cr.P.C. before the learned JMFC alleging that the petitioner/accused has committed an offence under section 138 of the N.I. Act.
4. Learned counsel for the petitioner is heard at length.
5. The petitioner has challenged three orders by this petition. First order is dated 11.4.2023 whereby cognizance has been taken against the petitioner for commission of offence under section 138 of the N.I. Act. It is worth mentioning that the petitioner had earlier filed an application under section 482 of Cr.P.C. challenging the order of taking cognizance but the said petition was dismissed as withdrawn and not pressed vide order dated 13.12.2024 passed in M.Cr.C. No.53514/2024 (Vikram Bhai Patel v. Praveen Group of Construction).
6. Learned counsel for the petitioner placing reliance on the judgment of apex Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh and others, (1975) 3 SCC 706 has argued that the High Court in changed circumstances can entertain a petition under section 482 of Cr.P.C./561A of old Cr.P.C. The aforesaid case law is based on provisions of section 561A of Cr.P.C., 1898 in which it is held that the facts and circumstances obtaining at the time of subsequent application if are clearly different from what they were in the earlier application, petition can be filed. He has also placed reliance on the decision of High Court of Calcutta in Indmark Finance and Investment Co. Pvt. Ltd. and another v. The Learned Metropolitan Magistrate 28th Court and others, 1992 (supple.) MWN (Cr.) Cal. in which point of territorial jurisdiction of the Court was considered.
7. The contention of learned counsel for the petitioner is not worth acceptance as in the first petition which was dismissed on 13.12.2024, the point with regard to cognizance was raised and that petition was dismissed as withdrawn. Therefore, no benefit can be given to him on the basis of case law of Superintendent and Remembrancer of Legal Affairs (supra), relied on as in that case petition was filed on different grounds which were clearly different what they were at the time of earlier application.
8. The Hon'ble apex Court in the case of Bhisham Lal Verma v. St
The accused has the right to rebut the presumption of a legally enforceable debt and must be granted an opportunity to adduce evidence in rebuttal, including the examination of a handwriting expert.
The defense of the accused regarding the misuse of the cheque and the absence of liability are matters of evidence to be proved by the accused.
The main legal point established in the judgment is the presumption of liability of the drawer of the cheques under Section 138 and 139 of the Negotiable Instruments Act, and the obligation on the ac....
The admission of the respondent's signature on the cheques made the appointment of a handwriting expert unnecessary.
Accused must prove that a signed cheque was not issued in discharge of a debt, as merely admitting the signature imposes the burden of proof under Section 139 of the NI Act.
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