A voluntarily signed blank cheque attracts the statutory presumption under Section 139 of the NI Act. Rebuttal requires the accused to provide evidence meeting the standard of 'preponderance of probability' rather than mere possibility or bare denial of debt.

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO a) SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 17.04.2021 PASSED BY THE J.M.F.C. - V COURT, MANGALURU IN C.C.NO.443/2017 AND ETC.

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

ORAL ORDER

1. Heard Sri. Ganapathi Bhat, learned counsel appearing on behalf of Sri. Venkatesh Somareddy for the petitioner.

2. Accused who suffered an order of conviction in CC No.443/2017 confirmed in Criminal Appeal No.89/2021 is the revision petitioner.

3. Facts in the nutshell which are utmost necessary for disposal of the present petition are as under:

3.1 Respondent filed a private complaint under Section 200 of Code of Criminal Procedure alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act, contending that accused and complainant had a loan transaction in a sum of Rs.3,00,000/- and towards the repayment, Cheque bearing No.880704 dated 06.09.2016 drawn on State Bank of India, Bantwala branch was issued, which on presentation came to be dishonored with an endorsement 'funds insufficient'. There was no compliance to the callings of legal notice and thus sought for action against the accused.

3.2 Learned Trial Magistrate after completing necessary formalities recorded plea. Accused pleaded not guilty. Therefore trial was held.

3.3 Complainant got examined himself as PW1 and placed on record five documents as against the same, accused got examined himself as DW1 and placed on record four documents.

3.4 Learned Trial Magistrate after considering the rival contentions of the parties, in a cumulative manner, convicted the accused inter alia of holding in paragraphs No.24 to 28 as under :

24. Further, from the cross examination of PW-1, it is clear that no where PW-1 has admitted anything which is favourable to the contentions raised by the accused. PW-1 has denied all the suggestion put to him by regarding issuance of alleged blank cheque and gold ornaments.

25. It is defence taken by the accused that he had issued blank signed cheque to the complainant and he has misused it. Inchoate Instrument- 'where one person signs and delivers to another a paper stamped in accordance with law relating to negotiable instruments either wholly blank or having written thereon incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete the amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount. By virtue of aforesaid provision of law even blank signed inchoate instrument amounts to negotiable instrument and the person signing the same shall be liable upon such Instrument. Hence, even in the case on hand though a some accused might have issued a blank cheque, that itself cannot be a defence in his favour, in view of provisions of section 20 of NI Act. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of section 138 would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards payment, the payee may fillup the amount and other particulars. This in itself would not invalidate the cheque. The onus still lies on accused to prove that cheque was not in discharge of debt or liability by adducing evidence. Even a blank cheque voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under section 139 of the NI Act, in the absence of any cogent evidence, to show that the cheque was not issued in discharge of a debt.

26. The doubts which are raised by the ac