TaxTMI 
TaxTMI 
2025 (6) TMI 752
X X X X Extracts X X X X
X X X X Extracts X X X X
....as well as the appellate court. 4. For effective and easy discussion, the parties in this appeal will be referred to as 'complainant' and 'accused' hereafter. Short facts:- 5. On dishonour of cheque dated 09.04.2011 for Rs.2,75,000/- drawn on Punjab National Bank issued by the accused in favour of the complainant for a legaly enforceable debt, the complainant lodged complaint before the trial court alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the NI Act"). 6. The trial court recorded evidence confined to that PW1 and Exts.P1 to P7 on the side of the complainant. Even though opportunity was provided to the accused to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C., he did not adduce any evidence. On appreciation of evidence, learned Magistrate found that the accused was guilty for the offence punishable under Section 138 of the NI Act, and accordingly, he was sentenced to undergo imprisonment till rising of the court, and to pay compensation of Rs.2,75,000/-, and sixty days default imprisonment for non payment of compensation also was imposed. 7. The accused challenged the v....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hereafter, he misused the blank cheque issued by the accused while receiving Rs.1,15,000/- for the purpose of this case. It is also pointed out that on receipt of legal notice of demand, the accused issued Ext.P7 reply disclosing these aspects. That is the reason why during cross-examination PW1 failed to deny the suggestion that the cheque was filled up by him. He also submitted that PW1 deposed that one Abdul Gafoor was present during the transaction. But he was not examined to prove the case of the complainant. Therefore, the 1st appellate court rightly found that the evidence of PW1 did not inspire confidence to be acted upon. Therefore the finding of the appellate court is only to be confirmed holding that the complainant failed to prove the transaction led to execution of Ext.P2 cheque as well as Ext.P1 agreement. 10. Addressing the contentions, the points that arise for consideration are as follows:- 1. Whether the appellate court is justified in reversing the finding of the trial court that the accused committed offence punishable under Section 138 of the NI Act, holding that the complainant failed to prove the transaction led to execution of Ext.P2 cheque and E....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rious cross-examination effected, challenging Ext.P1 rather than mere suggestion that it was a forged document. Non-examination of independent witness also is a reason found by the appellate court to hold that the complainant failed to prove his case. For these reasons, the learned sessions judge found fault with the complainant's case and negated the finding of the trial court. 12. This is a case in which the complainant put up a case that, the accused, being his friend, in dare need of money, demanded some amount from him for the treatment of his father and to clear his debt on the assertion that otherwise he had no option other than to commit suicide. Accordingly, the accused borrowed Rs.2,75,000/- and executed Ext.P1 agreement acknowledging the same. Regarding Ext.P1, the only suggestion during cross-examination is that it was a forged document. Regarding Ext.P2 also the accused denied the liability as well as the execution of Ext.P2. Apart from that, no effective cross-examination carried out. It is relevant to note that the issuance of cheque is admitted by the accused for a transaction to the tune of Rs.1,15,000/-, and out of which, admittedly Rs.15,000/- yet to be discha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 S.138 would be attracted, 38, 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. 39. It is not the case of the respondent-accused 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 S.139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in t....