Dismissed

Pulicherla Naga Venkata Satya Krishna Bhaskar v. the State of Andhra Pradesh

Andhra Pradesh HC10 Aug 2023CRLP/3906/2023

Case brief

AI extract

What is this about?

In this criminal petition, the High Court dismissed applications seeking summons for production of an application kit from an insurance company to prove the handwriting of a blank cheque. The court held that with a two-year gap, an expert opinion would serve no useful purpose and the accused must rebut the presumption under Section 139 Ni Act by cogent evidence.

What did the court decide?

Criminal Petitions No.3906 and 3958 of 2023 were dismissed; pending miscellaneous applications closed.

Pulicherla Naga Venkata Satya Krishna Bhaskar Vs the… — Cheque Dishonour | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY

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CRIMINAL PETITION Nos.3906 and 3958 of 2023

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ORDER:-

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These two Criminal Petitions are preferred by the accused/petitioner herein, being aggrieved by the order passed in Crl.M.P.No.4231 of 2022 and consequential order passed in Crl.M.P.No.4232 of 2022 in C.C.No.583 of 2018, dated 24.3.2023 by the II Additional Junior Civil Judge-cum-II Additional Judicial Magistrate of First Class, Eluru, whereby and where under both the petitions were dismissed.

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Crl.M.P.No.4231 of 2022 was filed in the Court below under Section 91 Cr.P.C. seeking summons to the H.R. Manager, ICICI Prudential Life Insurance Company, Mumbai to cause production of „application kit‟ of the petitioner so to send the same with the cheque in dispute for the opinion of the handwriting expert. Crl.M.P.No.4232 of 2022 was filed under Section 45 of the Indian Evidence Act.

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Brief facts of the case are as follows;

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2^nd respondent herein filed a private complaint

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against the petitioner/accused for the offence under

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Section 138 of the Negotiable Instruments Act alleging that the petitioner borrowed Rs.5,00,000/- (Rupees Five Lakhs only) from her agreeing to repay the same with interest @ 24% per annum under a promissory note; and after repeated demands the petitioner gave a cheque for Rs.4,00,000/-, which was dishonoured and so she gave legal notice. The petitioner herein failed to comply with the said demand. But he gave reply stating that he borrowed only Rs.50,000/- (Rupees Fifty Thousand only) and at the time of borrowing the money he was forced to give unfilled cheques signed by him. Hence she filed the complaint.

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The petitioner/accused has been contesting the said complaint. He moved the above two applications alleging that the complainant in her cross-examination stated that he himself filled the contents in the cheque, but he did not. Hence, the cheque which is marked during the course of trial as Ex.P2 has to be sent to the handwriting expert for opinion. So to get admitted writing of his, he prayed to summon „application kit‟ submitted by him to ICICI Prudential Company through its H.R. Manager.

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The said two applications were opposed by the complainant/2^nd respondent herein and the learned trial

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Court dismissed the petition in Crl.M.P.No.4231 of 2022 filed under Section 91 Cr.P.C. by giving reasons. In pursuance thereof, the petition in Crl.M.P.4232 of 2022, filed under Section 45 of the Evidence Act was also dismissed on the ground that the petition to issue summons to produce documents was dismissed.

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Heard both side and perused the record.

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It is the contention of the learned counsel for the petitioner/accused, that the accused has borrowed only Rs.50,000/- (Rupees Fifty Thousand only) from the complainant and executed promissory note and also gave two blank cheques and thereafter he has repaid the said amount. It is also contended that the complainant on one pretext or the other while promising to return the documents, did not return and surprisingly filed complaint under Section 138 of N.I. Act and it is also by showing as if the petitioner was due of Rs.5,00,000/- (Rupees Five Lakhs only). Hence, it is contended that the opinion of handwriting expert as to the handwriting in the dishonoured cheque is necessary so to strengthen the defence of the petitioner/accused that the complainant

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obtained blank cheques but not filled by the petitioner/accused.

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The learned Assistant Public Prosecutor, opposed the petitions stating that the petitioner filed the petitions to drag on the proceedings, without any merits, hence prayed to dismiss the petitions.

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This Court has gone through the impugned order in Crl.M.P.No.4231of 2022. The learned trial Court gave reasons for dismissing it by concluding that it is not known whether the „application kit‟ sought to be summoned and which is of the year 2016 contained his writing or not and that there is every possibility of change of the handwriting because of long time gap.

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Even according to the case of the

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petitioner/accused he gave blank cheques but signed by him. The Hon‟ble Supreme Court in Bir Singh Vs. Mukesh Kumar in Crl.A.Nos.230-231 of 2019 @ SLP (Crl Nos.9334-35 of 2018) held as hereunder;

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“37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it

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over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. 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.

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If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.

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It is not the case of the respondentaccused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable

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Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative.

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Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”

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In this case, the contention of the petitioner/accused is

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that unfilled cheque but duly signed by him was handed over to the complainant/2^nd respondent herein. Though it is not admitted by the complainant, in view of the provisions of the N.I. Act there is no bar for the holder of the cheque to fill the blanks. It cannot be regarded as material alteration in subsequent filling of unfilled signed cheque. The presumption would be in favour of the holder of the cheque and it is for the accused to rebut the said presumption by adducing cogent evidence, that the contents in the cheque for the amount, date etc., were filled with incorrect figures.

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Further, as rightly observed by the learned trial Court, there is no proof prima facie to show that the alleged application kit available with the ICICI Prudential Life Insurance Company at Bombay is in the handwriting of the petitioner/accused. Either signature or handwriting that is admitted alone can be sent for opinion of Handwriting Expert for comparison with disputed handwriting. Here the alleged „application kit‟ if admitted by the opposite party that it contained handwriting of the accused, it can be used to get opinion of Handwriting Expert. The petitioner/accused sought for summons to the H.R. Manager of ICICI Prudential Life Insurance Company, only for producing the „application‟ kit of the petitioner but not to give evidence to prove that the said application kit is in his handwriting (of the petitioner/accused) and that he was personally present and witnessed the petitioner filling the application made to the said Insurance Company at relevant time. Further, even according to the petitioner, the document namely „application kit‟ sought to be produced from Insurance Company is said to be of the year 2016 and the disputed dishonoured cheque basing on which complaint was filed by 2^nd respondent is of the year 2018.

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Thus there is more than two (2) years gap between them.

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Because of the said time gap also, it may not be possible to give a definite opinion by the handwriting expert, due to possibility of natural variations in the handwriting. Hence no useful purpose will be served in summoning the H.R. of ICICI Prudential Insurance Company, Bombay to produce application kit of the petitioner.

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Hence, the Criminal Petition No.3906 of 2023 is liable to be dismissed and so consequentially the Criminal Petition No.3958 of 2023 is also liable to be dismissed.

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Accordingly both the petitions are dismissed.

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As a sequel, all the pending miscellaneous

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applications shall stand closed.

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_________________________________ JUSTICE K. SREENIVASA REDDY

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Date: 10-08-2023 GR

Pulicherla Naga Venkata Satya Krishna Bhaskar v. the State of Andhra Pradesh

Case brief

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Pulicherla Naga Venkata Satya Krishna Bhaskar v. the State of Andhra Pradesh

Case brief

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