BY AD vs MEENA.A.

STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. MATHAI P.D, AGED 63 YEARS, S/O DEVASSIA, ADHIRA, IRUMBANCHOLA, A R NAGAR, TIRUR ANGHADI, MALAPPURAM DISTRICT-682 511. Crl.Rev.Pet.No. 392 of 2021 ..2.. BY ADVS. MEENA.A. VINOD RAVINDRANATH M.R.MINI ASHWIN SATHYANATH K.C.KIRAN M.DEVESH ANISH ANTONY ANATHAZHATH THAREEQ ANVER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Rev.Pet.No. 392 of 2021 ..3.. O R D E R This revision petition has been filed challenging the concurrent finding of conviction and sentence in a proceedings under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I.Act').

2. The revision petitioner is the accused and the respondent No.2 is the complainant in S.T.No.2143 of 2016 on the file of the Judicial First Class Magistrate Court, Malappuram (for short, 'the trial court'), which is a private complaint filed under Section 142 of the N.I.Act. The case of the respondent No.2 is that the petitioner borrowed a sum of Rs.2,00,000/- from him on two occasions and towards the discharge of the said debt, Ext.P1 cheque was issued, which on presentation was dishonoured for want of sufficient funds. Even though statutory notice under Section 138(b) of the N.I. Act was issued and received by the petitioner, there was no Crl.Rev.Pet.No. 392 of 2021 ..4.. compliance. Hence, the prosecution was launched.

3. Before the trial court, the respondent No.2 gave evidence as PW1 and Exts.P1 to P7 were marked. No defence evidence was adduced. After trial, the trial court found the petitioner guilty under Section 138 of the N.I.Act and he was convicted for the said offence. He was sentenced to undergo simple imprisonment till the rising of the Court and to pay Rs.2,00,000/- as compensation to the respondent No.2, in default, to suffer simple imprisonment for one month. The petitioner challenged the conviction and sentence of the trial court before the Additional District and Sessions Court-I, Manjeri (for short, 'the appellate court') as Crl.Appeal No. 210 of 2019. The appellate court dismissed the appeal confirming the conviction and sentence of the trial court. This revision petition has been filed challenging the judgments of the trial court as well as the appellate court. Crl.Rev.Pet.No. 392 of 2021 ..5..

4. I have heard Sri.S.Rajeev, the learned counsel for the petitioner and Sri.Thareeq Anver, the learned counsel for respondent No.2.

5. The learned counsel for the petitioner submitted that the petitioner has specifically disputed his signature in Ext.P1 cheque, the respondent No.2 failed to prove the execution as well as the signature in the cheque and hence the trial court as well as the appellate court ought not to have drawn a presumption in favour of the respondent No.2 under Sections 118 and 139 of the N.I.Act. On the other hand, the learned counsel for respondent No.2 submitted that even though the signature is disputed, the evidence on record would clearly establish that the respondent No.2 has proved the transaction, execution and signature in the cheque and the petitioner failed to adduce any rebuttal evidence to rebut the presumption available to the respondent No.2 under Sections 118 and 139 of the N.I.Act. Crl.Rev.Pet.No. 392 of 2021 ..6..

6. The petitioner gave Ext.P7 reply notice to Ext.P4 notice issued by the respondent No.2 to him under Section 138(b) of the N.I.Act. It is a detailed reply. In that reply, the petitioner has specifically stated that he has absolutely no acquaintance with the respondent No.2. The transaction alleged in the notice has been specifically denied. He has also specifically stated that he did not issue any cheque. That apart, in specific words, the petitioner has stated that he did not put the signature or make any writings on the cheque and the respondent No.2 has fraudulently and illegally fabricated his signature and writings in the cheque. In spite of the said specific averments in the reply notice, there is no mention about the said averments in the complaint. In other words, the said specific averments in the reply notice have not been controverted in the complaint. In the chief affidavit also, the respondent No.2 did not controvert the said denial of signature stated in the reply notice. On the other hand, in Crl.Rev.Pet.No. 392 of 2021 ..7.. the chief examination it is simply stated that the signature found in Ext.P1 cheque is that of the petitioner and in Ext.P6 acknowledgment card, the petitioner put signature in different form.

7. The learned counsel for respondent No.2 submitted that cheque was dishonoured for the reason, “insufficient funds” and not for the reason signature differs. Relying on the decision of the Supreme Court in Ajitsinh Chehuji Rathod vs. State of Gujarat and Ors. [AIR 2024 SC 787], it is argued that the petitioner ought to have summoned his specimen signature from the Bank to prove that the signature in Ext.P1 cheque is not that of his. That was a case where an application filed by the accused to send the cheque in question to a handwriting expert was dismissed. Considering the facts of that particular case, the Supreme Court found that since the accused failed to take steps to summon the bank records to disprove his signature and also to put any Crl.Rev.Pet.No. 392 of 2021 ..8.. question regarding the signature to the bank officials when examined, the dismissal of application for sending the cheque to the handwriting expert was correct. The said dictum may not apply to the facts of this case. As stated already, it is a case where from the very inception, the petitioner has taken a definite stand that the signature in Ext.P1 cheque is not that of his. Still, the respondent No.2 did not take any steps to prove that the signature in the cheque is that of the petitioner. The respondent No.2 could have either filed an application to send Ext.P1 cheque for scientific examination or summoned the account opening form and other relevant documents from the bank to compare the signature of the petitioner in those documents with that of the signature found in Ext.P1 cheque. Without proving the signature of the petitioner in the cheque, prima facie, the presumption under Sections 118 and 139 of the N.I.Act cannot be drawn.

8. I examined the signature found in Ext.P1 cheque Crl.Rev.Pet.No. 392 of 2021 ..9.. and also the signature found in Ext.P6 acknowledgment card. Both of them are totally different. I have also verified the signature of the petitioner in the vakalath filed before this court and also the signature put by him in the statement given by him under Section 313(1)(b) of Cr.P.C. The signature in the vakalat and the statement under Section 313(1)(b) of Cr.P.C. are almost similar in nature. But those signatures are totally different from the signature in the cheque. Thus, there is no convincing evidence before the court to prove that the signature in Ext.P1 cheque is that of the petitioner. It assumes significance since the petitioner specifically denied his signature in Ext.P1 cheque even in the reply notice. In these circumstances, I am of the view that the conviction and sentence passed by the trial court as well as the appellate court cannot be sustained.

9. The learned counsel for the respondent No.2 submitted that an opportunity should be given to the Crl.Rev.Pet.No. 392 of 2021 ..10.. respondent No.2 to prove that the signature in Ext.P1 cheque is that of the petitioner. Considering the entire facts and circumstances of the case, I am of the view that the parties should be given further opportunity to prove their respective contentions regarding the signature found in Ext.P1 cheque and its execution.

10. For the reasons stated above, the judgments passed by the trial court as well as the appellate court are hereby set aside. S.T.No.2143 of 2016 is remitted to the trial court for fresh disposal.

11. The parties shall appear before the trial court on

10.04.2025.

12. The trial court shall grant an opportunity to the respondent No.2 to take necessary steps to send the cheque for scientific examination and/or to summon the documents from the bank to prove the signature in Ext.P1 cheque. Crl.Rev.Pet.No. 392 of 2021 ..11..

13. The petitioner shall also be given an opportunity to adduce defence evidence, if any.

14. The trial court shall dispose of the case in accordance with law thereafter. The criminal revision petition is disposed of as above. APA Sd/- DR. KAUSER EDAPPAGATH JUDGE

STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. MATHAI P.D, AGED 63 YEARS, S/O DEVASSIA, ADHIRA, IRUMBANCHOLA, A R NAGAR, TIRUR ANGHADI, MALAPPURAM DISTRICT-682 511. Crl.Rev.Pet.No. 392 of 2021 ..2.. BY ADVS. MEENA.A. VINOD RAVINDRANATH M.R.MINI ASHWIN SATHYANATH K.C.KIRAN M.DEVESH ANISH ANTONY ANATHAZHATH THAREEQ ANVER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Rev.Pet.No. 392 of 2021 ..3.. O R D E R This revision petition has been filed challenging the concurrent finding of conviction and sentence in a proceedings under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I.Act').

2. The revision petitioner is the accused and the respondent No.2 is the complainant in S.T.No.2143 of 2016 on the file of the Judicial First Class Magistrate Court, Malappuram (for short, 'the trial court'), which is a private complaint filed under Section 142 of the N.I.Act. The case of the respondent No.2 is that the petitioner borrowed a sum of Rs.2,00,000/- from him on two occasions and towards the discharge of the said debt, Ext.P1 cheque was issued, which on presentation was dishonoured for want of sufficient funds. Even though statutory notice under Section 138(b) of the N.I. Act was issued and received by the petitioner, there was no Crl.Rev.Pet.No. 392 of 2021 ..4.. compliance. Hence, the prosecution was launched.

3. Before the trial court, the respondent No.2 gave evidence as PW1 and Exts.P1 to P7 were marked. No defence evidence was adduced. After trial, the trial court found the petitioner guilty under Section 138 of the N.I.Act and he was convicted for the said offence. He was sentenced to undergo simple imprisonment till the rising of the Court and to pay Rs.2,00,000/- as compensation to the respondent No.2, in default, to suffer simple imprisonment for one month. The petitioner challenged the conviction and sentence of the trial court before the Additional District and Sessions Court-I, Manjeri (for short, 'the appellate court') as Crl.Appeal No. 210 of 2019. The appellate court dismissed the appeal confirming the conviction and sentence of the trial court. This revision petition has been filed challenging the judgments of the trial court as well as the appellate court. Crl.Rev.Pet.No. 392 of 2021 ..5..

4. I have heard Sri.S.Rajeev, the learned counsel for the petitioner and Sri.Thareeq Anver, the learned counsel for respondent No.2.

5. The learned counsel for the petitioner submitted that the petitioner has specifically disputed his signature in Ext.P1 cheque, the respondent No.2 failed to prove the execution as well as the signature in the cheque and hence the trial court as well as the appellate court ought not to have drawn a presumption in favour of the respondent No.2 under Sections 118 and 139 of the N.I.Act. On the other hand, the learned counsel for respondent No.2 submitted that even though the signature is disputed, the evidence on record would clearly establish that the respondent No.2 has proved the transaction, execution and signature in the cheque and the petitioner failed to adduce any rebuttal evidence to rebut the presumption available to the respondent No.2 under Sections 118 and 139 of the N.I.Act. Crl.Rev.Pet.No. 392 of 2021 ..6..

6. The petitioner gave Ext.P7 reply notice to Ext.P4 notice issued by the respondent No.2 to him under Section 138(b) of the N.I.Act. It is a detailed reply. In that reply, the petitioner has specifically stated that he has absolutely no acquaintance with the respondent No.2. The transaction alleged in the notice has been specifically denied. He has also specifically stated that he did not issue any cheque. That apart, in specific words, the petitioner has stated that he did not put the signature or make any writings on the cheque and the respondent No.2 has fraudulently and illegally fabricated his signature and writings in the cheque. In spite of the said specific averments in the reply notice, there is no mention about the said averments in the complaint. In other words, the said specific averments in the reply notice have not been controverted in the complaint. In the chief affidavit also, the respondent No.2 did not controvert the said denial of signature stated in the reply notice. On the other hand, in Crl.Rev.Pet.No. 392 of 2021 ..7.. the chief examination it is simply stated that the signature found in Ext.P1 cheque is that of the petitioner and in Ext.P6 acknowledgment card, the petitioner put signature in different form.

7. The learned counsel for respondent No.2 submitted that cheque was dishonoured for the reason, “insufficient funds” and not for the reason signature differs. Relying on the decision of the Supreme Court in Ajitsinh Chehuji Rathod vs. State of Gujarat and Ors. [AIR 2024 SC 787], it is argued that the petitioner ought to have summoned his specimen signature from the Bank to prove that the signature in Ext.P1 cheque is not that of his. That was a case where an application filed by the accused to send the cheque in question to a handwriting expert was dismissed. Considering the facts of that particular case, the Supreme Court found that since the accused failed to take steps to summon the bank records to disprove his signature and also to put any Crl.Rev.Pet.No. 392 of 2021 ..8.. question regarding the signature to the bank officials when examined, the dismissal of application for sending the cheque to the handwriting expert was correct. The said dictum may not apply to the facts of this case. As stated already, it is a case where from the very inception, the petitioner has taken a definite stand that the signature in Ext.P1 cheque is not that of his. Still, the respondent No.2 did not take any steps to prove that the signature in the cheque is that of the petitioner. The respondent No.2 could have either filed an application to send Ext.P1 cheque for scientific examination or summoned the account opening form and other relevant documents from the bank to compare the signature of the petitioner in those documents with that of the signature found in Ext.P1 cheque. Without proving the signature of the petitioner in the cheque, prima facie, the presumption under Sections 118 and 139 of the N.I.Act cannot be drawn.

8. I examined the signature found in Ext.P1 cheque Crl.Rev.Pet.No. 392 of 2021 ..9.. and also the signature found in Ext.P6 acknowledgment card. Both of them are totally different. I have also verified the signature of the petitioner in the vakalath filed before this court and also the signature put by him in the statement given by him under Section 313(1)(b) of Cr.P.C. The signature in the vakalat and the statement under Section 313(1)(b) of Cr.P.C. are almost similar in nature. But those signatures are totally different from the signature in the cheque. Thus, there is no convincing evidence before the court to prove that the signature in Ext.P1 cheque is that of the petitioner. It assumes significance since the petitioner specifically denied his signature in Ext.P1 cheque even in the reply notice. In these circumstances, I am of the view that the conviction and sentence passed by the trial court as well as the appellate court cannot be sustained.

9. The learned counsel for the respondent No.2 submitted that an opportunity should be given to the Crl.Rev.Pet.No. 392 of 2021 ..10.. respondent No.2 to prove that the signature in Ext.P1 cheque is that of the petitioner. Considering the entire facts and circumstances of the case, I am of the view that the parties should be given further opportunity to prove their respective contentions regarding the signature found in Ext.P1 cheque and its execution.

10. For the reasons stated above, the judgments passed by the trial court as well as the appellate court are hereby set aside. S.T.No.2143 of 2016 is remitted to the trial court for fresh disposal.

11. The parties shall appear before the trial court on

10.04.2025.

12. The trial court shall grant an opportunity to the respondent No.2 to take necessary steps to send the cheque for scientific examination and/or to summon the documents from the bank to prove the signature in Ext.P1 cheque. Crl.Rev.Pet.No. 392 of 2021 ..11..

13. The petitioner shall also be given an opportunity to adduce defence evidence, if any.

14. The trial court shall dispose of the case in accordance with law thereafter. The criminal revision petition is disposed of as above. APA Sd/- DR. KAUSER EDAPPAGATH JUDGE