Naresh Gulati v. Surinder Kumar

The respondent filed a complaint dated 27.7.2006 (Annexure- P.4) under Section 138 of the Negotiable Instruments Act, 1881 (`NI Act' – for short) on the allegations that there were friendly relations between the parties. It was alleged that the petitioner-accused was in dire need of money Cr. Revision No.2416 of 2010 [2] and he requested the complainant-respondent to arrange a loan for an amount of `3,54,000/-. The complainant acceded to the request of the petitioner and arranged an amount of `3,54,000/- from his relatives and friends which he gave to the petitioner in the month of May 2005. The petitioner in order to discharge his enforceable legal liability issued the post-dated cheque dated 29.5.2006 for an amount of `3,54,000/- drawn on the Punjab National Bank, Basti Jodhewal Branch, Ludhiana in favour of the complainant-respondent. At the time of the issuing post-dated cheque, the accused had assured that the cheque would be duly honoured on its presentation. The complainant-respondent presented the said cheque in his bank i.e. the Allahabad Bank, Chaura Bazar, Ludhiana. The Bank of the complainant-respondent sent it for collection to Punjab National Bank of the petitioner. The said cheque was, however, returned vide memo dated

9.6.2006 with the remarks “account closed”. Therefore, the cheque was dishonoured by the Bank of the accused-petitioner. On receipt of the bank memo, the complainant-respondent got served a registered AD legal notice dated 1.7.2006, which dispatched on 3.7.2006 on both the addresses of the petitioner through his counsel. The notice was also sent under postal certificate (UPC). The notice through UPC along with one registered AD letter was received by the accused-petitioner but the other registered AD letter was received back by the counsel for the complainant with the remark “left”. In spite of the receipt of the legal notice, the petitioner failed to make the payment and, therefore, the complaint was filed. The case of the petitioner is that he has taken specific stand Cr. Revision No.2416 of 2010 [3] against the false and frivolous complaint (Annexure-P.4) filed by the respondent. The petitioner in his defence has taken the stand that he has business dealing with the respondent. The respondent ordered hosiery goods from the petitioner in the year 2000 and paid an advance of `2 Lacs as a security. He received three blank signed cheques from the petitioner in the year 2000. The respondent received the finished goods in the month of December 2001 vide bills dated 4.12.2001 for `48,900/-, dated 6.12.2001 for `56,500/-, dated 12.12.2001 for `55,500/- and dated 14.12.2001 for `63,000/-. After supply of these goods the petitioner asked the respondent to return his blank signed cheques which were originally taken as security but the intention of the respondent turned mala fide and he kept on telling the petitioner that the cheques had been misplaced. Due to friendly cordial relations between the parties, the petitioner did not doubt the intentions of the respondent. However, it is alleged that the respondent with a mala fide intention filled the blank cheque No.140300 dated 29.5.2006 and created a false liability against the petitioner. The petitioner in his defence examined Mr. Raman Kumar as DW-1, who tendered his own affidavit dated

11.6.2009 (Annexure-P.5) completely supporting the stand of the petitioner. The main issue of the defence of the petitioner, it is submitted, is that the petitioner had given a blank signed cheque in the year 2000 but it has been filled by the respondent at some later date. In order to prove his case, the petitioner filed an application dated 13.2.2010 (Annexure-P.2) for sending the cheque in question to the Director, Forensic Science Laboratory for determining the age of the writing on the body of the cheque. The Cr. Revision No.2416 of 2010 [4] respondent filed his reply dated 12.3.2010 (Annexure-P.3) to the said application. The application (Annexure-P.2) of the petitioner has been dismissed by the learned Judicial Magistrate Ist Class, Ludhiana vide her impugned order dated 17.8.2010 which is assailed by the petitioner. Learned counsel for the petitioner has submitted that the petitioner is liable to be granted full opportunity to prove his case and the learned Magistrate has gravely erred in not sending the cheque in question to the Director, Forensic Science Laboratory for determining the age on the body of the cheque. Learned counsel cites T. Nagappa v. Y.R. Murlidhar, 2008 (2) Simla Law Journal 1227 (SC). After hearing learned counsel for the petitioner and perusing the record, I find no merit in the contention raised by the learned counsel for the petitioner. The case of the petitioner is that the cheque in question is liable to be sent to the Director, Forensic Science Laboratory so as to determine the period of time as to when the blank cheque that he had given was filled. A perusal of the impugned order dated 17.8.2010 passed by the learned Judicial Magistrate Ist Class shows that the complaint has been pending for defence evidence since 10.2.2009. During this period the accused-petitioner filed an application in terms of Section 315 Cr.P.C. for examining himself in the case. The said application was accepted on

19.1.2010. However, till date he had not examined himself in the case. The application (Annexure P2) had been moved for determining the age of the writing on the body of the cheque which according to the learned Magistrate was not necessary and it appeared that the said application (Annexure-P.2) Cr. Revision No.2416 of 2010 [5] had been filed only to delay the proceedings of the case as there was no provision to do so. Moreover, it was observed that the signatures of the accused were not in dispute and his only plea was that the cheque had been filled by the complainant. As such, it was observed that no useful purpose would be served by sending the cheque to Director, Forensic Science Laboratory, accordingly, the application was dismissed. In T. Nagappa v. Y.R. Murlidhar (supra) referred to by learned counsel for the petitioner, it was held that when a contention has been raised that the complainant had misused the cheque even in a case where a presumption can be raised under Section 118(a) or 139 of the NI Act, an opportunity must be granted to the accused for adducing evidence in rebuttal. It was held that as the law places the burden on the accused, he must be given an opportunity to discharge it. An accused, it was observed, has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. A reference was made to the provisions of Section 243(2) Cr.P.C. and it was held that as to what should be the nature of evidence is not a matter which should be left only to the discretion of the Court. It is the accused who knows how to prove his defence. In the said case, it was held that the application filed by the appellant therein was bona fide. It may also be noticed that in the said case the appellant therein had filed an application for referring the cheque in question for examination by the Director of Forensic Science Laboratory for determining the age of his signatures contending that the respondent had obtained a signed cheque from him in the year 1999 as a security for a hand Cr. Revision No.2416 of 2010 [6] loan of Rs.50,000/- which has been paid back but instead of returning the cheque the same had been misused by entering a huge amount. In the present case, the signatures are not in dispute and the fact that it is a post-dated cheque is also not in dispute. The dispute is with regard to the writing which is filled in the body of the cheque. A post-dated cheque as is well known remains a bill of exchange till the date written on the face of it. On that date, it becomes a cheque. The mere fact that the cheque in question is mentioned and referred to as the post-dated cheque would mean that it is a cheque from the date as mentioned on it, which is 29.5.2006. The evidence by way of affidavit (Annexure-P.6) of Surinder Kumar-respondent and also his cross- examination (Annexure-P.7) have been placed on record. In the examination-in-chief (Annexure-P.6) of Surinder Kumar-respondent, it is stated by him (Surinder Kumar-respondent) that he gave an amount of `3,54,000/- to the accused Naresh Gulati (petitioner) as a friendly loan. Naresh Gulati (petitioner) in order to discharge his existing enforceable legal liability towards him issued a post-dated cheque bearing No.140300 dated 29.5.2006 for `3,54,000/- drawn on Punjab National Bank, Basti Jodhewal, Ludhiana in his favour. It is also stated at the time of issuance of the post-dated cheque the accused Naresh Gulati (petitioner) assured him (respondent) that the cheque shall be honoured on its presentation in his bank. Therefore, the examination-in-chief is that the cheque has been issued by the petitioner. Therefore, it was for the petitioner to cross- examine him on this aspect that it had not been issued by him. Rather in the Cr. Revision No.2416 of 2010 [7] cross-examination (Annexure-P.7) the respondent reiterates that he had seen the cheque and it was not filled in his hand. Thereafter, the respondent himself stated that it is filled by the accused. Despite this it is not put to the respondent during his cross-examination that the cheque in fact had not been filled by the respondent. A party is liable to put its case in cross- examination and failure to cross-examine on a particular point recorded in the examination-in-chief is deemed to be admitted. These aspects are normally not to be gone into at this stage in the revision. However, in view of the categoric assertion in the application (Annexure-P.2) and in the present petition that the name of the payee, amount in words and figures as well as the date on which the cheque was issued are not filled in by the accused but by the complainant himself and that the complainant had intentionally and mala fidely denied this fact, it was necessary to advert to the examination-in-chief (Annexure-P.6) and the cross-examination (Annexure-P.7) of the respondent. In the cross-examination of the complainant-respondent these aspects have not been put to him. Therefore, these are deemed to be accepted. It may also be noticed that the application (Annexure-P.1) for sending the cheque in question to the Director, Forensic Science Laboratory was filed at the stage when the case was fixed for final order. On the said date, the accused-petitioner changed his counsel and filed the application. The learned Magistrate in her impugned order has also noticed that the case was fixed for examining himself in terms of Section 315 Cr.P.C. which was accepted on 19.1.2010 but till the date of the order he had not examined Cr. Revision No.2416 of 2010 [8] himself. Thereafter, the application was filed for determining the age of the writing on the cheque. Section 243 (2) Cr.P.C. envisages that if the accused entering upon his defence applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination or production of another document or any other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing. Therefore, an accused has a right to lead his defence for which he is to be given every opportunity to meet the case of the complainant. However, the same can be denied where the Magistrate trying the case considers that such an application was made for the purpose of vexation or delay or for defeating the ends of justice, which shall be recorded by him. The learned Magistrate has specifically recorded that it appears that the application (Annexure-P.2) had been moved only to delay the proceedings of the case. This indeed would be a valid ground for declining the application within the ambit of Section 243(2) Cr.P.C., which would not warrant interference of this Court in exercise of its revisional jurisdiction. Consequently, there is no merit in this petition and the same is accordingly dismissed. October 5, 2010. *hsp* (S.S. Saron) Judge