Dinesh Kumar v. Subhash Singh

14. Learned counsel for the respondent has further submitted that in respect of the alteration in the year of the subject cheque, the learned Appellate Court as well as Trial Court has observed the same is not a material alteration within the definition of Section 87 of the NI Act as the case of the petitioner is not of cancellation or overwriting on the date of cheque. Regarding the difference in the signature of the petitioner on the subject cheque and specimen signature card, it is submitted that the only difference in both the signatures is that the petitioner has signed as ‘Dinesh’ in the subject cheque and ‘Dinesh Chand’ in the specimen signature card. It is further submitted that the dishonour of cheque in the present case was on account of insufficiency of funds and not because of non-matching of the drawer’s signature. Moreover, learned Trial Court and Appellate Court, on examination of the signatures under Section 72 of the Indian Evidence Act, 1872, (for short, ‘IEA’), have given findings that the difference in the signatures is only in respect of the full name of the petitioner and the petitioner has not examined any expert during his defence evidence to show that the signature on the subject cheque were forged by the respondent in order to falsely implicate him in the present case.

15. It is the case of the respondent that the petitioner has not deliberately signed the subject cheque in his full name and the Courts below have duly adverted to the said fact and have given findings in this regard after due appreciation of facts. It is thus, submitted that the impugned judgments do not suffer from any infirmity, illegality and perversity and therefore, the present petition is liable to be dismissed.

16. Heard learned counsel for the parties and perused the record.

17. The main contention on behalf of the petitioner is that he never had any transaction with the complainant/respondent. It is the defense of the petitioner that the respondent in collusion with one Mr. Sumit Arora had misused the cheque in question. It is a stand of the petitioner that he was an ice seller who used to sell ice in front of the shop of Mr. Sumit Arora. As per the petitioner, he had purchased one motorbike from M/s Shiva Auto in installments and the aforesaid Sumit Arora had helped the petitioner in opening his bank account and since, he did not have any safe place to keep the cheque book and passbook, he, therefore, handed it over to said Sumit Arora who kept the said cheque book in his shop for the payment of installments to M/s Shiva Auto. It was contended that the said cheque was, thereafter, misused by the respondent in collusion with the aforesaid Sumit Arora. The other contention raised was that the signature of the petitioner on the subject cheque is different from the specimen signature kept with the bank which was duly proved on behalf of the petitioner by way of a testimony of DW-1. Similarly, it was contended that there were cutting/alterations in the printed year on the cheque which did not bear any signature of the petitioner for its verification. Finally, it is submitted that the respondent/complainant has not placed any document showing payment of Rs.2,00,000/- as alleged or any proof of alleged return of Rs.25,000/- to him by the petitioner. These contentions, as per the learned counsel for the petitioner, were not examined by the learned Trial Court as well as by the learned Appellate Court.

18. The learned Trial Court while convicting the petitioner had observed and held as under: -

not bring in an iota of proof to show that he had purchased a motor bike from M/s Shiva Auto, got it financed from ICICI Bank, the opening of his bank account or for that matter even the repayment of all the installments as alleged by him. The accused also never got examined any of the witnesses who were a part of the above transaction. In the absence of any substantial proof mere oral averments is neither here nor there and will not help the case of the accused.

12. Now, the accused had got examined only one bank witness as DW[1] from Delhi State Cooperative Bank. The above witness had tendered the certified copy of account opening form as well as copy of specimen signature which are Ex.DW1/1 and Ex.DW1/2. The accused has also relied on Certified copy of Rashan Card of accused Ex.DW1/3,, certified copy of cheque in question return voucher Ex.DW1/4 and certified copy of image of cheque in question Ex.DW1/5, certified copy of letter for stop payment to the branch manager Ex DW1/6 and certified copy of charges for stop payment as Ex.DW1/7, certified copy of pan card of the accused Ex.DW1/8 and certified copy of voter card is Ex.DW1/9 and certified copy of KYC form is Ex.DW1/10. A careful perusal of the above documents do not show a significant difference in the signature of the accused when examined by this court u/s 73 of the Indian Evidence Act 1872. True, the witness has gone on to admit that the signature in the specimen card as well as the cheque is different but that difference is only to the extent that the accused had not signed the cheque in question in full as in his specimen signature. In the cheque in question he has signed as Dinesh whereas in the specimen signature he has signed as Dinesh Chand. Further, the fact that the cheque in question had got dishonored on the ground of funds insufficient and not drawer's signature differs only complicates the case of the accused. Interestingly, the name of the accused as furnished in this case and also as furnished in his bail bond is Dinesh Kumar which raises strong suspicion that the accused has deliberately not signed the cheque in question in full. The accused never made any effort to examine any handwriting expert to actually challenge the signature in the cheque in question. By merely saying that he had not signed the cheque in question will not sufficiently but the case of the complainant. The burden is on the accused to prove that the signature in the cheque in question is not his. The evidence of the bank witness to the effect that the signature in the specimen, signature differs as its in full does not prove the case of the accused that he has not signed the cheque in question, especially in the light of the fact that the name Dinesh written in Hindi, completely matches with the same mentioned in the specimen signature. The fact that the cheque in question was drawn from the account of the accused and had also got dishonored on the ground of insufficient funds and not drawer's signature differs would sqauarely attract the presumptions under section 118 and 139 of the Act in favour of the complainant. The accused has not been able to prove that the signature in the cheque in question was indeed forged and not his. 13. As per the story of the accused, he had left the entire cheque book with one Mr. Sumit Arora. This appears to be completely incredible and makes the case of the accused a big suspect as it is difficult to believe that any prudent person should leave a completely blank cheque book with another person merely because he did not have any other safe place to keep the same. Further, the accused has also never claimed back the cheque book from the above Sumit Arora or had lodged any police complaint regarding the same. Interestingly however, the accused has relied on a letter to the bank for stop payment which is Ex.DW1/6 and also a photocopy of the police complaint which has not even been tendered in evidence and both these documents mentions that the above Sumit Arora had handed over the cheques of the accused to one Mr. Satish Singh who appears to be and altogether new persona in the story of the accused.

14. The only other piece of contention raised by the accused is that the cheque in question also bears material alteration as there is a cutting on the date and a printed "19" has been struck of to rewrite

2013. To this effect the accused has also relied on a series of judgments "Smt. Kamla Bai Vs. Madan Lal" (M.Crl.C.No.1069/2008), "Kuldeep Singh Vs. Dharam Singh" (CRM-A-491-MA of 2014), "Veera Exports Vs. T.Kalavathy" (Appeal Cri No.1110-1111 of 2001), "M/s Goyal Enterprises Vs. State of Jharkhand & Another" (Appeal no.28 of 2008), Mrs. Kalyani Baskar Vs. Mrs. M.S.Sampoornam" (Appeal (crl.) 1293 of 2006), Loonkaran Sethia Vs. Mr. Ivan E. John and Ors" (Civil appeal no.416 of 1973 and 572). All of these judgments were carefully perused and they deal with all such cases wherein there were material alterations and in absence of the validation by the accused the instrument was held to be void. However, the facts of the present case are at variance with the facts of the above cases. In the present case the date has not been altered,per se. Rather, the date is mentioned clearly as 30th June 2013. However, in place of 2013 there is 19 printed on the leaf of the cheque which has been struck of. This does not raise the possibility of a material alteration within the defination of section 87 of the Act as it is not the case that a particular date has been mentioned, thereafter, canceled and a new date has been re written. Rather, it only shows that the cheque leaf belongs to some old cheque book wherein the date of the instrument has been mentioned. Otherwise also the onus under section 103 of the Indian Evidence Act 1872 lies on the accused to prove a specific fact. It was for the accused to prove his contention that there was actually a material alteration in the instrument in question within the parameters of section 87 of the Act which was not done by the accused.

15. In an offence under section 138 of the Act, once it is proved that the cheque in question is of the account of the accused and further it has got dishonored on a ground other than "drawer's signature differs" presumptions would generally accrue in favour of the complainant. Onus is on the accused to rebut the presumptions by raising such credible defence as would make his story trustworthy. The accused has failed in discharging his burden and sufficiently rebuting the case of the complainant.” (emphasis supplied)

19. Perusal of the aforesaid observations made by learned Trial Court shows that all the contentions raised by the petitioner in the present petition have been dealt with and the same were challenged by a way of an appeal before learned ASJ and the learned Appellate Court while dismissing the appeal of the petitioner, had observed and held as under: - “6. After giving my thoughtful consideration to the aforesaid rival submissions. I have come to the considered opinion that the appeal as filed by the appellant is devoid of merits as there is no material irregularity or illegality in the impugned judgment of conviction and order on sentence. In his well written judgment dated 17.10.2015, Ld. Trial Court has rightly come to the conclusion that the accused (appellant herein) has failed to rebut the presumption in favor of the complainant. Further all the ingredients to make out a case U/s 138 of Negotiable Instruments Act, 1881 have been proved beyond reasonable doubt. First of all, it is not in disputed that the cheque in question got dishonored due to the fund insufficient in the bank account of accused. The plea of the appellant that the cheque in question does not bear his signature, has no force in it in view of the fact that appellant failed to examine any handwriting expert to substantiate his said claim as it was incumbent upon the appellant to prove the said fact on record by calling the handwriting expert in his defence, which appellant failed to call. I find myself in complete agreement with the finds of Ld. Trial Court that "a careful perusal of the documents do not shows a significant difference in the signature of the accused when examined by the court U/s 72 of the Indian Evidence Act." Ld. Trial Court has further rightly observed that “……….that difference is only to the extent that the accused had not signed the cheque in question in full as In his specimen signature. In the cheque In question, he has signed as Dinesh, whereas In the specimen signature, he has signed as Dinesh Chand." It has also been rightly opined by Ld. Trial Court that "the evidence of bank witness to the effect that the signature In the specimen signature differs as Its In full does not prove the case of the accused that he has not signed the cheque In question, especially In the light of the fact that the name Dinesh written In Hindi completely matches with the same mentioned In the specimen signature". The claim of the appellant that Ld. Trial Court ought not to have examine the signature of appellant itself, rather, it should have taken the assistance of expert, is devoid of substance as the Court can always make such examination to arrive at true picture. Thus, the appellant has been failed to prove on record that the signature in the cheque in question was forged one.

7. As regards to the plea of appellant that he has never borrowed any amount from the complainant and the cheque in question was not issued and delivered to the complainant for discharging his legal debt or liability, since this court has already arrived at the conclusion that the appellant has been failed to prove on record that the signature in the cheque in question was forged one and the complainant has already furnished all the documents regarding the issuance of cheque on record, the presumption of Section 118 NI Act and 139 NI Act would be attracted. Section 139 of the Negotiable Instrument Act provides as follows:- "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability." It has been rightly observed by Ld. Trial Court that once the presumption is raised, the onus squarely shifts on the accused to rebut the same failing which the court “shall” presume that the cheque in question was issued towards some legal debt or liability and in lieu of consideration.

8. The another plea, as raised on behalf of appellant that there is cutting on the date and a printed "19" has been struck of to rewrite 2013, also find no force in it. Perusal of the cheque in question reveals that the date has not been altered, rather, being the cheque pertaining to the old series starting from 19, the said word "19" had been struck off and date mentioned as 30th June 2013. Ld. Trial Court has rightly observed that "this does not raise the possibility of a material alteration within the definition of Section 87 of the Act as it is not the case that a particular date has been mentioned, thereafter, canceled and a new date has been rewritten."

9. Further in order to show that appellant used to sell ice in front of the shop of Sumit Arora and the said Sumit Arora helped him in got opening a Bank account in Bank of India at his address i.e. RZ- A- 1/180, Nihal Vihar, New Delhi and appellant had purchased one motor bike from M/s Shiva Auto in installments and the said M/s Shiv Auto got the motorbike financed from ICICI Bank upon the recommendation of Sumit Arora and since the appellant was not having safe place for keeping cheque book and pass book, on the demand of Sumit Arora and as security, the appellant handed over cheque book (signed/ blank cheques) to Sumit Arora to keep the cheque book in his shop but later on Sumit Arora became dishonest and misused, misappropriated and mis-utilized some of the cheques by filling his name in the cheque and mis-utilized the same, there is not an iota of evidence on record in this regard. By examining himself in his defence, appellant could have narrated about these facts and in the absence of same, the same remains only a bald assertions. Even otherwise, it is unbelievable that one would keep his cheque book (signed/blank cheques) and passbook etc., as claimed by the appellant in his appeal, with some other person only because of the reasons that he was not having any safe place to keep them.

10. Since, it is established that the cheque in question was issued by appellant, then onus was on the appellant to rebut the presumption and the appellant was failed in rebutting the same.

11. In view of aforesaid, it is clear that all the necessary ingredients of section 138 of Negotiable Instruments Act are fulfilled in this case, so I find no infirmity in the impugned judgment dated 17.10.2015 and as such the same is hereby upheld.”

20. It is pertinent to note that the same pleas have been raised before this Court as well by the petitioner. This Court has gone through the testimony of CW-1, i.e., the complainant/respondent and the cross-examination conducted on behalf of the petitioner before the learned Trial Court. In the crossexamination, the respondent has clearly given the dates when the petitioner approached the respondent for grant of loan, i.e., 4th/5th October, 2012, and the date of giving the loan to petitioner, i.e., on 09.10.2012. He stated that the petitioner had repaid the amount of Rs.25,000/- on 29.06.2013 in cash and at the same time the subject cheque was handed over to the complainant/respondent by the petitioner for the payment of the remaining amount. Thereafter, the cross-examination of the petitioner is only with regard to giving suggestions to the respondent and nothing substantial has been brought on record in order to rebut the presumption under Section 139 of the NI Act. In the cross-examination of DW-1, who was the concerned Officer of the petitioner’s bank, it has been stated by the said witness that the reason for dishonor of the cheque was “insufficient funds” and not “mismatching of signatures”.

21. In order to rebut the presumption under Section 139 of the NI Act, it is not imperative for the accused/petitioner to enter into the witness box and testify. However, at the same time, the presumption has to be rebutted by way of some material on record or by pointing out the lacunae in the case on the complainant by way of cross-examination. As pointed out hereinabove, in the cross-examination, the respondent herein has categorically given the definite dates of the transactions as well as the date of the transaction, when the subject cheque was handed over to him by the petitioner/accused. The defense taken by the petitioner that the cheque book was kept with some other persons, i.e., Sumit Arora, as he was paying installments with respect to his bike has also not been substantiated on record by any evidence.

22. So far as the contention of the difference in signatures is concerned, this Court has also perused the signature on the subject cheque and the specimen signature on the document provided by DW-1 and it is duly noted that the signature on the subject cheque in Hindi is “दिनेश” and in the specimen signature (Ex. DW-1/2) is “दिनेश चन्ि”. The signature of the petitioner on the specimen signature (Ex. DW-1/2) were and the signature of the petitioner on the subject cheque (Ex. CW-1/1) were as. From the perusal of both the signatures of the petitioner similarity is clearly visible. The onus was on the petitioner to establish that it was not his signature. Possibility of the petitioner signing the cheque in his first name to avoid his liability cannot be ruled out. The subject cheque was not dishonoured for mismatch of signature but due to “Insufficient funds”.

23. So far as the argument of alteration on the cheque, it is noted that it is not the case of the petitioner that he had given the signed cheque of a certain date which was then altered and presented. Thus, if the petitioner had been successful in demonstrating that the signature on the cheque does not belong to him then such an alteration, if any, would assume significance. Otherwise, the findings of the learned Trial Court and the learned Appellate Court on this issue is in accordance with law.

24. The law with respect to the interference by this Court in the revisional jurisdiction after two consecutive findings by the Courts below is well settled. In order to put this Court to exercise the jurisdiction under Section 401 of the CrPC, the petitioner had to show illegality or perversity in the impugned judgment passed by the learned Appellate Court as well as the learned Trial Court in the instant case. The grounds taken in the present petition as well as during the course of the trial are the same which were taken by the petitioner before the learned Appellate Court. The grounds raised before the learned Appellate Court were dealt by a detailed threadbare analysis of the prosecution/complainant’s evidence placed on record and findings given by the learned Trial Court. It was for the petitioner to demonstrate the perverseness in the impugned judgment passed by the learned Appellate Court in order to cause interference by this Court with two concurrent findings of conviction qua the present petitioner. The Hon'ble Supreme Court in Manju Ram Kalita v. State of Assam 3, while dealing with the scope of reappreciation of evidence by higher Court in criminal revision, had observed in paragraph 9 as under: -

Following the aforesaid judgment, the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh[4], has held as under: -

against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be well-founded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.”

25. This Court has examined the impugned judgment dated 03.10.2016 passed by the learned Appellate Court as well as the judgment of conviction and order on sentence passed by the learned Trial Court and on the basis of the material on record, this Court finds no grounds to interfere in the impugned judgment passed by the learned ASJ. Accordingly, the present petition is dismissed.

26. Order dated 21.11.2016 staying impugned order on sentence dated 18.10.2015 passed by learned Trial Court stands vacated.

27. The petitioner shall undergo the sentence awarded by the learned Trial Court. The petitioner shall surrender before the learned Trial Court within a period of 15 days to serve the sentence awarded to him and for payment of the compensation amount of Rs. 3,50,000/- to the respondent.

28. In view of the aforesaid directions, the petition is dismissed and disposed of accordingly along with all pending applications, if any.

29. Copy of the judgment be sent to the concerned Jail Superintendent as well the learned Trial Court for necessary information and compliance.

30. Judgment be uploaded on the website of this Court, forthwith. AMIT SHARMA, J. JULY 03, 2025/kr/ns/sc