TaxTMI 
TaxTMI 
2019 (9) TMI 882
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....nding payment of the amount of the cheque. The accused received the notice. He did not pay the amount. 3. During the trial of the case, the complainant was examined as PW1 and Exts.P1 to P6 documents were marked on his side. DW1 was examined and Exts.D1 to D5 documents were marked on the side of the accused. 4. The trial court found that there are suspicious circumstances regarding the execution of the cheque by the accused and issuing it by him to the complainant in discharge of a debt. Therefore, the trial court found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him. 5. Heard learned counsel for the appellant and also the first respondent and perused the records. 6. Ext.P1 is the cheque dated 20.04.2004 for Rs. 2,00,000/- alleged to have been executed by the accused and delivered by him to the complainant. The cheque is seen signed by the proprietor of "Nice Agencies". Ext.P2 memorandum dated 08.9.2004 issued from the bank shows that the cheque was returned unpaid for the reason that payment was stopped by drawer. Ext.P3 memorandum issued from the bank would show that intimation was given to the complainant from his bank rega....
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....ecution of the cheque by the accused. 11. A person who signs a cheque and makes it over to the payee remains liable under Section 138 of the Act unless he adduces evidence to rebut the presumption that the cheque was issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque was filled up by any person other than the drawer, if the cheque is duly signed by the drawer. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars in the cheque. This in itself would not invalidate the cheque. The onus would still be on the accused to prove, by adducing evidence, that the cheque was not issued in discharge of a debt or liability. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract the presumption under Section 139 of the Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. In the absence of any evidence with regard to the circumstances in which a blank signed cheque was delivered by the accused to the complainant, it may reasonably be presumed that, th....
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....red is the intrinsic worth of the testimony of a witness. Defence witnesses are entitled to equal treatment with those of the prosecution. Quite often, they tell lies, but so do the prosecution witnesses (See Dudh Nath Pandey v. State of U.P. AIR 1981 SC 911). Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, constitute oral evidence in the case. The scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses. Different yardsticks cannot be prescribed for appreciation of the testimony of different categories of witnesses (See State of U.P v. Babu Ram : AIR 2000 SC 1735). 17. Ext.D3 is the copy of the complaint alleged to have been given by the accused, against the complainant and his partner, to the Circle Inspector, Kalamassery. Ext.D4 is the copy of the complaint given by the accused, against the complainant and his partner, to the Circle Inspector, Ernakulam Central Police Station. The averments ....
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....n is over. The accused in a trial under Section 138 of the Act has two options. He can show that consideration and debt did not exist. He may also show that, under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. An accused is not expected to prove his defence beyond reasonable doubt. The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. But, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of passing of consideration and existence of debt, would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumption, the accused should bring on record, such facts and circumstances, upon consideration of which, the Court may e....
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....sed merely because he has chosen to abstain from the witness box (See Kashiram v.State of M.P : AIR 2001 SC 2902). The right of the accused to keep silence finds its expression in the provision contained in Section 315 (1) of the Code. It is the mandate of the proviso to Section 315(1) of the Code that the failure of the accused to give evidence shall not be subject to any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial. It is immaterial that, in a case, the burden is on the accused to prove a fact. No court can comment on the choice made by the accused to abstain from the witness box. Failure or omission of the accused to examine himself as a witness shall not attract any comment from the court. No adverse inference can be made against the accused on his failure to enter the witness box. 25. Of course, learned counsel for the appellant has contended that the evidence of DW1 is not reliable and Exts.D3 and D4 documents cannot be acted upon by the court and that the evidence adduced by the accused does not enable him to rebut the presumption under Section 139 of the Act. Even if th....
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....tion-in-chief, PW1 has only stated that the accused issued the cheque for discharging the legally enforceable debt due to him. It is only during the cross-examination that the complainant would disclose that the accused had borrowed Rs. 2,00,000/- from him on 20.03.2004. Such a case is disclosed by the complainant for the first time only during the cross-examination. PW1 has given evidence that there was no reason for not disclosing the nature and details of the transaction between him and the accused in the complaint. 28. Thirdly, even in examination-in-chief, the complainant has not given any evidence that the accused signed Ext.P1 cheque in his presence and gave it to him. Such a case was put forward by him only during the cross-examination. Absence of any averment by PW1 in examination-in-chief (proof affidavit) regarding the execution of the cheque by the accused has got significance. The complainant was very well aware that plea of the accused was that the cheque was got signed from him under threat and coercion. As noticed earlier, the complainant did not even make a bare statement in examination-in-chief denying the truth of the aforesaid plea raised by the accused. 29.....