Tinku v. State Of Haryana And Another

 
 






  
 



































































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The learned trial Magistrate on appreciation of the evidence on file came to the conclusion that the accused has admitted his signatures on the cheque and the word "cheque" occurring in Section 138 of the Act includes a blank cheque which is signed by the drawer with the material particulars left unfilled at the time it was handed over to the payee and even if the material particulars are subsequently filled up and presented for payment, such a cheque takes the same liability. While holding so, learned trial Magistrate relied upon the judgment dated 20.04.2012 passed by Delhi High Court in the case of Crl. M.C.1325/2012 - Ravi Chopra Vs. State and another; judgment of the Division Bench of the Kerala High Court in 2003(2) DCR 610 - Lillykutty Vs. Lawrance and a judgment of this Court in 2012(2) RCR (Cri) 306 - Gurmeet Singh Vs.

State of Haryana, and held that the payee is entitled to fill up the details including the amount, date and other particulars if the cheque has been duly signed by the accused and he cannot escape his liability and once the execution of cheque is duly proved, the holder of cheque in due course is entitled to rely upon the presumption raised in his favour by virtue of Section 118 and 139 of the Act and it has to be presumed that the cheque was issued by the drawer for consideration and in discharge of his existing debt or liability. Though the said presumption is rebuttable yet onus lies upon the accused to rebut the same. 10.

The learned trial Magistrate further held that mere closure of the account on an earlier date cannot be considered as a conclusive proof of the fact

that cheque pertaining to such an account cannot be used by account holder at any future date. Whether any such cheque was indeed issued by the accused after closure of the bank account or not, is not a matter of mere presumption. The accused has raised a defence that he had kept bank cheques with himself in his cheque book but he has failed to explain as to why he had kept blank cheques in his cheque book and no prudent and reasonable man can be expected to keep a blank signed cheque at his own. No explanation has also been given regarding the circumstances under which he had lost the cheque book and no details regarding the suspected time or place regarding the loss of cheque have also been disclosed and learned trial Magistrate came to the conclusion that the accused has failed to rebut the presumption by leading any cogent and convincing evidence. 11.

Regarding filing of criminal complaint Ex.D1 accused against complainant, it was held that accused appeared in the complaint under Section 138 of the Act on 09.12.2015 after he was summoned to face the trial but he instituted the complaint under Section 420/406 IPC Ex.D1 on 05.07.2017 after a lapse of 22 months and such a delay in filing the complaint goes to show that it was a result of an after-thought and was not worth acceptance. It was further held that accused has failed to probablise his defence and it can thus be presumed that cheque in question was issued by the accused in favour of complainant in discharge of his legal debt or liability.

12.

Regarding issuance of notice Ex.C4, it was held that same was sent to the accused at his correct address and once a letter is sent through registered post at the correct address, it shall be presumed to have reached the addressee in view of Section 27 or Section 114 of Evidence Act. This presumption is also rebuttable but accused has failed to rebut the same by leading any cogent and convincing

= evidence and it is not his case that the address mentioned in the notice is not correct.

13.

Learned trial Magistrate thus rightly came to the conclusion that the accused had issued the cheque in discharge of his existing debt or liability and the same was dishonored as he had closed the account and he also failed to pay the amount despite notice issued to him within the stipulated period and rightly held him guilty and convicted under Section 138 of the NI Act. Learned Appellate Court has also affirmed the finding of the trial Magistrate by appreciating the evidence in the correct perspective and no interference in the revision petition is thus called for particularly because the judgments under challenge do not suffer from any illegality or impropriety. Proper procedure too has been followed while deciding the complaint and the findings are supported by cogent and convincing evidence and the impugned judgments do not suffer from any illegality much less perversity and the same are not liable to be interfered with. Resultantly, the revision in hand is dismissed.

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