High Court of KeralaSingle JudgeDismissed

D. Ravi v. Pavithran E. (and State of Kerala)

Case / Petition Number:Crl.MC No. 8216 of 2019 (F)
Neutral Citation:/

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • R. Narayana Pisharadi, J.
Judgment Date
2019-11-25
Court Decision / Holding
The petition is dismissed. The court clarifies that nothing stated in the order shall affect the independent appreciation of evidence by the trial court.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • D. Ravi

Respondents

  • Pavithran E.
  • State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

  • • M. V. Amaresan

Counsels for Respondents

  • • C. N. Prabhakaran, Sr. PP

Case Synopsis & Summary

The High Court of Kerala at Ernakulam, in a Criminal Misc. Case (Crl.MC No. 8216 of 2019) decided on 25 November 2019 by Judge R. Narayana Pisharadi, deals with a challenge to interlocutory orders in a case under Section 138 of the Negotiable Instruments Act, 1881. The petition arises from ST 20/2017 before the Judicial First Class Magistrate, Payyannur, and the Sessions Court, Thalassery’s order in CRRP 3/2019. The petitioner, D. Ravi, is accused of issuing a post‑dated cheque for Rs. 1,00,000 in discharge of a debt after borrowing from Pavithran E. The cheque, dated 02.07.2015, was dishonoured for insufficient funds, and the complainant served a statutory notice, to which the accused did not respond. During trial, the complainant testified that the cheque was written, prepared, and signed by the accused, but the accused challenged the handwriting of the payee and date and sought sending the cheque to a handwriting expert. The trial court dismissed that request; the Sessions Court dismissed the revision; and the petitioner approached this Court under Section 482 Cr.P.C. The learned judge relies on the Supreme Court’s Bir Singh v. Mukesh Kumar (AIR 2019 SC 2446) to hold that there is no necessity to forward the cheque for handwriting examination. Finding no force in the petitioner’s contentions, the High Court declined to interfere, and dismissed the petition, while noting that trial‑court evidence remains for independent evaluation. The decision leaves handwriting issues to be resolved at trial.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 20, Section 87, and Section 139 of the Negotiable Instruments Act, 1881Section 482 of the Code of Criminal Procedure, 1973

Legal Doctrines & Maxims

  • Presumption under Section 139 NI Act that a signed cheque issued for payment of a debt gives rise to a presumption of liability; onus on the accused to rebut through evidence.
  • A signed blank cheque, if voluntarily handed over and later filled by the payee, does not constitute an alteration; the onus to prove otherwise lies with the accused, and the absence of cogent evidence to show non‑issuance in discharge of a debt allows the presumption to stand.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that handwriting in the cheque (specifically the name of the payee and the date) may not be in the accused’s handwriting, and therefore the cheque should be sent to a handwriting expert for opinion. He relies on Bir Singh v. Mukesh Kumar (AIR 2019 SC 2446) to argue that there is no necessity to forward the cheque for expert handwriting examination. The applicant asserts that he had borrowed Rs. 1,00,000 from one Krishnan and signed the cheque, alleging that it may have been handed to Krishnan rather than the complainant; the absence of a reply to notice should not foreclose this possibility, and the handwriting question is central to the question of liability. The contested issue, according to the petitioner, should be resolved by the handwriting expert’s opinion prior to trial. The petition thus seeks to exercise the inherent jurisdiction under Section 482 Cr.P.C. to quash or modify the lower court orders.

Contentions of Respondents

The respondents rely on the presumption under Section 139 NI Act that a signed cheque towards discharge of a debt raises a presumption of liability, shifting the burden to the accused to prove that the cheque was not issued in discharge of debt. They point to the complainant’s testimony that the cheque was written, prepared, and signed by the accused and were supported by the accused’s admitted signature. They argue that the cheque, having been signed and produced by the drawer, does not automatically require handwriting examination, and the question of handwriting does not override the statutory presumption and the trial’s evaluation of credibility. The revisional court’s reliance on Bir Singh is consistent with the view that the handwriting aspect is a matter for trial, and that the onus remains on the accused to rebut the presumption by evidence.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Bir Singh v. Mukesh KumarAIR 2019 SC 2446PositiveThe High Court follows the Bir Singh principle to hold that there is no necessity to forward the cheque for handwriting examination; the onus remains on the accused to rebut the presumption of liability.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941** ## **Crl.MC.No.8216 OF 2019(F)** **AGAINST THE ORDER IN CRRP 3/2019 DATED 05-09-2019 OF SESSIONS COURT,THALASSERY** **AGAINST THE ORDER IN ST 20/2017 DATED 26-11-2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS II, PAYYANNUR** ## **PETITIONER/REVISION PETITIONER/ACCUSED:** ## **D.RAVI** **AGED 50 YEARS S/O.LATE K.P.KUNHIRAMAN, CHERUTHAZHAM, PIGMY COLLECTOR, KANNUR DISTRICT CO-OP BANK, PILATHARA BRANCH, P.O.PILATHARA, KANNUR DISTRICT** ## **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **1 PAVITHRAN E. S/O.CHERIYAMBU, MANIYADAN HOUSE, PEROOL, M.M.BAZAAR.P.O., KANNUR DISTRICT, PIN-670306** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031** ## **R2 SRI C N PRABHAKARAN -SR PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.11.2019, THE COURT ON 25.11.2019 PASSED THE FOLLOWING:** **Crl.MC.No.8216 OF 2019(F)** **2** ## **R. NARAYANA PISHARADI, J** **----------** ----------------------------------- ## **Crl.M.C No. 8216 of 2019** --------------------------------------------- Dated this the 25[th] day of November, 2019 ## **O R D E R** The petitioner is the accused in the case S.T No. 20/2017 on the file of the Court of the Judicial First Class Magistrate-II, Payyannur. 2. The aforesaid case is one instituted upon the complaint filed by the first respondent against the petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 3. The case of the complainant is as follows: The accused borrowed an amount of Rs.1,00,000/- from him promising that he would repay the amount within a period of three months. The accused issued a post dated cheque dated 02.07.2015 for the amount in discharge of the liability on the assurance that the cheque would be duly honoured on presentation after the due date. The complainant presented the cheque in the bank. It was dishonoured for the reason that there was no amount in the account of the accused. The complainant sent a notice to the accused demanding payment of the **Crl.MC.No.8216 OF 2019(F)** **3** amount of the cheque. The accused received the notice. He did not pay the amount. He did not send any reply. 4. During the trial of the case, the complainant was examined as PW1. In examination-in-chief (proof affidavit) he has specifically stated that the accused wrote, prepared and signed the cheque in front of him and gave it to him. A suggestion was made to PW1 during the cross-examination that the entries in the cheque were not in the handwriting of the accused. This suggestion was denied by PW1. 5. Thereafter, at the stage of defence evidence, the petitioner filed an application as Crl.M.P No. 158/2018 in the trial court for sending the cheque to an expert for opinion as to the handwriting in which the name of the payee and the date are written in the cheque. The aforesaid application was dismissed by the trial court. 6. The petitioner filed Crl.R.P No. 3/2019 before the Court of Session, Thalassery challenging the aforesaid order passed by the trial court. Learned Sessions Judge dismissed the revision petition. Being aggrieved, the petitioner has approached this Court, with this petition under Section 482 Cr.P.C. 7. Heard the learned counsel for the petitioner. 8. The complainant had sent notice to the petitioner **Crl.MC.No.8216 OF 2019(F)** **4** demanding payment of amount of the cheque. Admittedly, the petitioner did not send any reply to the statutory notice. 9. The petitioner has admitted his signature in the cheque. He only disputes the handwriting of the entries in the cheque with regard to the name of the payee and the date. 10. At this juncture, it may be noticed that the plea of the petitioner is that he had borrowed Rs.1,00,000/- on 19.10.2012 from one Krishnan and he had signed and given the cheque to Krishnan. 11. The revisional court has heavily relied upon the decision of the Supreme Court in **Bir Singh v. Mukesh Kumar (AIR 2019 SC 2446)** in coming to the conclusion that there is no necessity to forward the cheque for examination by an expert. 12. In **Bir Singh** (supra), the Supreme Court has held as follows: “ _A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Section 20, Section 87 and Section 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence 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_ **Crl.MC.No.8216 OF 2019(F)** **5** _otherwise valid, the penal provisions of Section 138 would be attracted. 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. ..... 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. ..... In the absence of any finding that the cheque in question was not signed by the respondentaccused 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”._ 13. Learned counsel for the petitioner would contend that the decision in **Bir Singh** (supra) has no application to the facts of the case. I find no force in this contention. The petitioner has admitted the signature in the cheque. A cheque, which is signed by the **Crl.MC.No.8216 OF 2019(F)** **6** petitioner and which has been issued to him from his bank, is in the possession of the complainant. Then, it is for the petitioner to explain how that cheque came into the possession of the complainant. His plea is that he had given the cheque to one Krishnan. It is a matter to be proved by him during the trial of the case. 14. Even if for a moment it is accepted that, the evidence given by the complainant that the petitioner wrote, prepared and signed the cheque in front of him is not true, and even if it is assumed that the complainant himself or some other person had filled up the cheque, it does not matter unless the petitioner establishes that he had no occasion to hand over the cheque to the complainant and in fact, he had given the cheque to some other person. The petitioner has no case that he has adduced any evidence to that effect. In such circumstances, there is no need to send the cheque for examination by an expert. 15. It is a different matter whether the evidence of the complainant in the case can be believed or not. It is a matter to be decided by the trial court. 16. In the aforesaid circumstances, I find that there is no sufficient ground to interfere with the impugned orders passed by the courts below. **Crl.MC.No.8216 OF 2019(F)** **7** 17. Consequently, the petition is dismissed. I make it clear that nothing stated in this order shall affect the appreciation of evidence in the case independently by the trial court. **R. NARAYANA PISHARADI JUDGE** **lsn** **Crl.MC.No.8216 OF 2019(F)** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF THE CHEQUE DATED 02.07.2015 PRODUCED AS EXHIBIT P1 IN THE COMPLAINT** - **ANNEXURE 2 TRUE COPY OF COMPLAINT STC NO.2793/2015 FILED BY THE 1ST RESPONDENT DATED 24.08.2015 BEFORE THE JUDICIAL MAGISTRAE OF THE FIRST CLASS, PAYYANNUR** - **ANNEXURE 3 TRUE COPY OF CHIEF AFFIDAVIT IN STC.NO.20.2017 DATED 7.05.2018** - **ANNEXURE 3(a) TRUE COPY OF DEPOSITION IN STC NO.20.2017 OF THE 1ST RESPONDENT DATED 17.10.2018** - **ANNEXURE 4 TRUE COPY OF ORDER IN CMP NO.158/2018 DATED 26.11.2018 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PAYYANNUR** - **ANNEXURE 5 TRUE COPY OF ORDER IN CRL.RP.NO.3/2019 DATED 15.09.2019 PASSED BY THE COURT OF SESSIONS THALASSERY** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN**