Trial u/S 138 NI Act-Signatures on cheque not disputed-Cheque to be taken as validly drawn-The fact that the body of the cheque was not filled up by accused himself-is no defence in itself: Punjab and Haryana High Court

IN THE HIGH COURT OF PUNJAB AND HARYANA CRM M 306319passed by Additional Sessions Judge Faridkot thereby dismissing the revision petition against the above said order of the trial Court The facts giving rise to the present petition are that the petitioner had given a cheque to the complainant which the complainant claims to be received in discharge of enforceable liability of the petitioner The said cheque was defaulted in payment. Therefore the complainant had preferred a complaint against the petitioner under Section 138 of NI Act The complainant completed his evidence. At the stage of starting of the defence evidence the petitioner accused has taken a plea that the cheque in question though undisputedly signed by him however was not `drawn by him because he had not filled up the body of the cheque. To prove this fact the petitioner accused moved an application before the trial Court for sending his sample handwriting to the expert for comparison of the same CRM M 306319R.C.R. 317 and a judgment of Kerala High Court in C Santhi v. Mary Sherly 2011(4) R.C.R.94 Having heard learned counsel for the petitioner and having perused the file this Court does not find substance in the argument of the learned counsel for the petitioner. In the present case the petitioner has not even disputed his signatures on the cheque. Therefore the only attempt which is being made by the petitioner is that he wants to prove the non existence of the consent of the petitioner qua drawing of the cheque by asserting the fact that body of the cheque was not filled up by the petitioner accused. However it is not even disputed by the petitioner that the cheque which is on the Court file is complete in all respects containing all the necessary particulars meant for a cheque. Therefore in considered opinion of this Court even if the Court would have acceded to the request of the petitioner and sent the cheque for comparison of the handwriting of the petitioner and in an extreme case even if the report would have come to CRM M 306319and asymmetric crypto CRM M 306319R.C.R.R.C.R.94. However this Court finds the said judgments to be distinguishable on the facts of these cases. In case of M s Surveka Distributors Pvt. Ltd.it is clear that the accused in that case has taken a plea that he was having regular business dealings with the complainant and he had given the un filled cheque in good faith to the complainant. Therefore to establish his plea of good faith in handing over blank cheque to the complainant of that case the accused had prayed for comparison of signatures of the `complainant on the said cheque. In the present case the accused petitioner is not seeking the comparison of handwriting of the complainant rather he is seeking comparison of his own handwriting in a virtual attempt to say that it is not he who filled up the body of the cheque whereas anybody else may have done it. However as mentioned above this is not any defence for the accused in a case under Section 138 of Negotiable Instruments Act. So far as the judgment of the Kerala High Court in C. Santhi s caseis concerned this Court is in respectful partial disagreement with the said judgment. This Court finds that as per the statutory provisions the word `drawn is not defined by the Act. Even the definition of the cheque is such which may not even require any handwriting of the drawer of the cheque. It can be even any digital format requiring only digital `signature . All the provisions of Negotiable CRM M 306319Cr.P.C. Since in the present case also the petitioner has tried to reck up the issue of `legality or `propriety of the orders passed by the Courts therefore the present petition is nothing but a second revision in the garb of petition filed under Section 482 Cr.P.C. However a person cannot be permitted to do indirectly what he cannot do directly. This proposition of law has already been considered and decided by this Court in CRM M 303518 Sudesh and others v. State of Haryana and another as under “So far as the present petition is concerned this petition has been filed for invoking power of the High Court under CRM M 306319of Cr.P.C prohibits second revision by a party. Under Section 397(1) the Revisional Court is authorised to see `legality and `propriety of the order passed by the Court. Since second revision by the same party is prohibited under Section 397(3) therefore any argument on `legality or CRM M 306319 (O&M 12 propriety of an order passed by the Court below ordinarily is not to be appreciated in proceedings under Section 482 Cr.P.C unless it is shown at the macro level that such an order has resulted from considerations which were totally alien to the process of the Court or have produced incomprehensibly absurd result and therefore have resulted in defeating the ends of justice itself. What cannot be done directly cannot be done indirectly as well. In the present case except to argue for re appreciation of the material before the trial Court there is not even a submission or an allegation regarding any aberration in the process adopted by the Courts for passing the impugned orders. Therefore power under Section 482 Cr.P.C cannot be exercised by this Court to re appreciate the same material which was available before the Courts below and which have been duly appreciated by the Courts below.” In the present case much less to speak of any process alien to law being adopted by the Courts below as stated above this Court does not find even any illegality or perversity in the orders passed by the Courts below. Hence the present petition is otherwise also not maintainable July 19 2019 ( RAJBIR SEHRAWAT JUDGE Whether Speaking reasoned Yes No Whether Reportable 

Summary: It appeared that the power under Section 482 Crpc cannot be exercised by this Court to re-appreciate the same material, which was available before the Courts below and which have been duly appreciated by the Courts below” held by Hon’ble Justice Rajbir Sehrawat in Sukhjinder Singh versus Buta Singh [CRM-M-30633 of 2019 (O&amp;M)]. The facts leading to this case relate to the petitioner had given a cheque to the complainant; which the complainant claims to be received in discharge of enforceable liability of the petitioner. The said cheque defaulted in payment. Therefore, the complainant had preferred a complaint against the petitioner under Section 138 of the NI Act The complainant completed his evidence. At the stage of starting the defence evidence, the petitioner/ accused has taken a plea that the cheque in question, though undisputedly signed by him, however, was not `drawn’ by him; because he had not filled up the body of the cheque. To prove this fact, the petitioner/ accused moved an application before the trial Court for sending his sample handwriting to the expert for comparison of the same with the writing found in the body of the cheque. That application was declined by the trial Court vide the above-said order dated 29.01.2019. Aggrieved against the order of the trial court, the petitioner preferred the revision petition before the Court of Additional Sessions Judge, Faridkot. However, the same was also declined by the Additional Sessions, Judge. While dismissing the revision petition, the Revisional Court observed that the accused want to plead that it is not he, who filled up the body of the cheque; rather it is the complainant who filled up the cheque. However, the complainant has not even claimed in the complaint that the accused filled up the cheque. Rather it is the positive case of the complainant that when the cheque was sought to be handed over to the complainant, at that time, the body of the cheque was already filled up, however, the signature of the accused/petitioner was not there. Therefore, the petitioner was asked to put his signatures; so as to complete the cheque. Accordingly, the petitioner put the signatures on the cheque in the presence of the complainant and, thereafter, handed over the same to him. Still, further, it was observed by the trial Court that signatures on the cheque are not even disputed by the petitioner. Accordingly, the Revisional Court held that even as per the law, it is not necessary that the body of the cheque in question must have been filled by the drawer himself. The body of the cheque could have been filed up by anybody. Therefore, this fact is; otherwise also; irrelevant. The provisions of the Negotiable Instruments Act do not contemplate the fact that the body of the cheque should be filled up by the drawer of the cheque himself. Rather, the provisions speak only qua the signatures of the drawer being present on the cheque/bill of exchange. It is appropriate to have reference to provisions of the Act in this regard. Sections 5 and 6 of the Negotiable Instruments Act, 1881. Section 120 of the Act, creates an estoppel against the drawer of the cheque or maker of a promissory note or bill of exchange; by denying him the right to question the validity of the instrument as originally made or drawn. Therefore, there is no statutory or jurisprudential basis to hold that unless the body of the cheque is filled up by the drawer himself, the cheque would not be taken as having been validly `drawn’ by him. Once the signatures are not denied then it contains an in-built presumption that all the material particulars have been filled up either by the drawer or with his authorisation, unless the drawer proves it otherwise, by leading some other independent evidence. The fact that the body of the cheque was filled up in handwriting other than that of the drawer of the cheque; is not any proof of the fact that the consent of the drawer; in drawing such a cheque; was missing. If this is permitted then the drawer of the cheque can frustrate the provisions of the Negotiable Instruments Act in; virtually; every case. He can get the cheque prepared as per his choice from some other person and can subsequently start pleading that he had not filled up the body of the cheque or that he had not consented to the filling of the body of the cheque. In such a situation, the payee or the holder in due course would have no means to prove his consent. Otherwise also, since the cheque is not a document that is required to be attested by witnesses for being a valid document, therefore, the complainant is under no legal obligation to examine a witness to prove the due execution of the same. On the contrary, if the drawer of the cheque takes a plea that his consent qua drawing of the cheque was missing, then it is, exclusively; for the drawer to prove the fact that he had not consented to the filling of the body of the cheque. “This Court finds that as per the statutory provisions the word `drawn’ is not defined by the Act. Even the definition of the cheque is such which may not even require any handwriting of the drawer of the cheque. It can be even any digital format requiring only a digital `signature’. All the provisions of Negotiable Instruments Act only require signatures of the drawer on such instrument for making it a valid tender”. Once the signatures are not disputed; then the cheque has to be taken to have been drawn by the drawer himself, however, subject to the other defences which the drawer may be able to take in accordance with the law. The cheque was filled up by the petitioner in his presence. It was the case of the complainant that the body of the cheque was already filled up and the petitioner only put his signatures in his presence. Therefore, getting compared the handwriting for the purpose of a fact; which is not even claimed by the complainant; would have been a useless exercise. The court does not find any illegality or perversity in the order passed by the Courts below. Even otherwise, the petitioner has already availed his remedy of revision against the order passed by the trial Court.