Whether burden of proof is on accused to prove how leaves of cheque entered into hands of complainant?

As far as the present case is concerned, in

addition to three reasons, given by the High Court, we

are of the view that the original appellant has not even

explained how the leaves of the cheque entered into the

hands of the complainant. It is urged that in cross examination

of the complainant some suggestions were made

that since the complainant was visiting the office of the

original appellant, he had access to the same. The

complainant had only admitted that he visited the office

of the original appellant but he denied all the other

suggestions. Thereafter, it was for the original

appellant to prove his part of the case.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.664 OF 2012

M. ABBAS HAJI  Vs T.N. CHANNAKESHAVA 

Author: DEEPAK GUPTA, J.

Dated: September 19, 2019
Citation: (2019) 9 SCC 606

Delay in filing substitution application is

condoned. Application for substitution is allowed and

abatement is set-aside.

This appeal is directed against the order dated

22.10.2008, whereby the High Court allowed the appeal of

the complainant and held the original appellant before us

(since deceased), whose legal representatives are on

record, liable for conviction under Section 138 of the

Negotiable Instruments Act (hereafter referred to as the

"Act"). He was sentenced to pay fine of Rs.5,10,000/- and

in default to undergo simple imprisonment for one year.

The legal heirs, in such a case, are neither liable

to pay the fine or to undergo imprisonment. However, they

have a right to challenge the conviction of their

1

predecessor only for the purpose that he was not guilty

of any offence. We have, therefore, allowed the

application filed by the legal heirs to prosecute this

appeal.

The case set up by the complainant was that the

original appellant had borrowed a sum of Rs.5 lakhs from

him and for repayment of that sum had issued a cheque on

18.11.2000 drawn on State Bank of Mysore. On

presentation, the cheque was dishonoured for want of

sufficient funds. Thereafter, legal notice (Ext.P4) was

issued, which has been duly served upon the original

appellant. According to the complainant, no reply to the

said notice was received and therefore a private

complaint was filed. A defence was raised by the accused

that he had not signed the cheque. During the course of

the trial, the original appellant got the cheque sent to

the handwriting expert for comparison with the admitted

signatures. It is not clear as to what were the admitted

signatures which were sent to the handwriting expert but

the handwriting expert opined that the signatures on the

cheque were not those of the person who had written the

admitted signatures. The Trial Court dismissed the

complaint mainly on the ground that the handwriting

expert had opined that the signatures on the cheque were

not those of the original appellant.

The complainant filed an appeal to the High Court,

which after considering the entire evidence, has

delivered a well reasoned judgment upsetting the judgment

of the Trial Court. The reasons which weighed with the

High Court were that; (1) the original appellant did not

step into the witness box to state that he had not signed

the cheque; (2) that the opinion of the handwriting

expert was only an opinion and not conclusive; (3) that

the original appellant had failed to prove that he had

sent a reply to the notice sent to him by the complainant

because so-called reply was not marked in evidence and no

postal receipt of the same was placed on record.

It is urged before us that the High Court overstepped

the limits which Appellate Court is bound by

criminal cases setting aside an order of acquittal.

Proceedings under Section 138 of the Act are

quasi-criminal proceedings. The principles, which apply

to acquittal in other criminal cases, cannot apply to

these cases. As far as the present case is concerned, in

addition to three reasons, given by the High Court, we

are of the view that the original appellant has not even

explained how the leaves of the cheque entered into the

hands of the complainant. It is urged that in crossexamination

of the complainant some suggestions were made

that since the complainant was visiting the office of the

original appellant, he had access to the same. The

complainant had only admitted that he visited the office

of the original appellant but he denied all the other

suggestions. Thereafter, it was for the original

appellant to prove his part of the case. The High Court,

in our opinion, was right in holding the original

appellant guilty under Section 138 of the Act.

We see no reason to interfere in the appeal, which

is accordingly dismissed.

The amount deposited by the original appellant

along with interest, if any accrued thereon, can be

withdrawn by the complainant.

...................J.

(DEEPAK GUPTA)

...................J.

(ANIRUDDHA BOSE)

New Delhi

September 19, 2019

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