2025 (7) TMI 1449

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....ndered in the above-said case, the complainant approached this Court with the present appeal. The parties in this appeal hereinafter be referred to as the complainant and the accused for clarity. 3. The case of the complainant in brief is as follows; The accused and the complainant are known to each other. The accused borrowed an amount of Rs.1,00,000/- from the complainant. Towards the discharge of the said liability, the accused issued a cheque for Rs.1,00,000/- dated 15.10.2011 drawn on the account maintained by him with Alappuzha District Co-operative Bank, Pulinkunnu branch, in favour of the complainant. At the time of issuing the cheque, the accused assured the complainant that there would be sufficient funds in his account as and when the cheque is presented for encashment. However, when the complainant presented the said cheque for collection through his account maintained at Alappuzha District Co-operative Bank, Kavalam branch, the same was returned dishonored, stating the reason 'funds insufficient'. Thereafter, the complainant issued a notice to the accused intimating the dishonour of the cheque and demanding the payment of the cheque amount. Although the said notice w....

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....unt. In order to prove his case, the complainant got himself examined as PW1. He filed an affidavit in lieu of chief examination and reiterated the allegations made in the complaint. During cross-examination, he asserted that the accused had brought a duly filled-up cheque and had signed it in his presence. At this juncture, it is pertinent to note that the learned Sessions Court gave undue importance to the evidence of PW1 that he did not see the appellant writing the amount in Ext.P1 cheque. However, through a series of judicial pronouncements, it is now well settled that there is no legal requirement that the drawer of a cheque must personally write all the entries in a cheque for prosecuting him for an offence under Section 138 of N.I. Act. The Hon'ble Apex Court in Bir Singh v. Mukesh Kumar [2019 (9) SCC 197]: 2019 1 KLT 598 : 2019 1 KHC774: 2019 1 KLD 420], where in paragraph Nos. 36 to 40 and 42, summarized the legal position as regards to the applicability of Sections 20, 87, and 139 of the N.I. Act, after referring the earlier decisions of the Apex Court reported in [(2013) 1 SCC 177] MSR Leathers v. S. Palaniappan, [(2008) 14 SCC 457] Southern Sales and Services v. Sauerm....

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....of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of it exercise of undue influence or coercion. The second question is also answered in the negative. 40. 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. xxxxx 42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have ....

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....ld that, a presumption will have to be made that a negotiable instrument was made or drawn for consideration and that, it was executed for discharge of debt or liability, when once the execution of the said negotiable instrument is either proved or admitted. This Court in P.G. Joshy v. Jose Varghese [2019 SCC online KER 2965] held that 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 by any person other than the drawer if the cheque is duly signed by the drawer. 10. Keeping in mind, the above said propositions of law, while reverting to the present case, it can be seen that the evidence given by PW1 and the documents which I have mentioned above clearly show that, the complainant had succeeded in establishing the basis for drawing a presumption under Section 139 of the Negotiable Instruments Act in his favour. 11. While considering whether the said presumption stands rebutted, it becomes necessary to examine defence version of the incident. The case of ....