It appeared that the power under Section 482 Crpc cannot be exercised by this Court to re-appreciate the same material, which was available before the Courts below and which have been duly appreciated by the Courts below” held by Hon’ble Justice Rajbir Sehrawat in Sukhjinder Singh versus Buta Singh [CRM-M-30633 of 2019 (O&M)].
The facts leading to this case relate to the petitioner had given a cheque to the complainant; which the complainant claims to be received in discharge of enforceable liability of the petitioner. The said cheque defaulted in payment. Therefore, the complainant had preferred a complaint against the petitioner under Section 138 of the NI Act The complainant completed his evidence. At the stage of starting the defence evidence, the petitioner/ accused has taken a plea that the cheque in question, though undisputedly signed by him, however, was not `drawn’ by him; because he had not filled up the body of the cheque. To prove this fact, the petitioner/ accused moved an application before the trial Court for sending his sample handwriting to the expert for comparison of the same with the writing found in the body of the cheque. That application was declined by the trial Court vide the above-said order dated 29.01.2019. Aggrieved against the order of the trial court, the petitioner preferred the revision petition before the Court of Additional Sessions Judge, Faridkot. However, the same was also declined by the Additional Sessions, Judge.
While dismissing the revision petition, the Revisional Court observed that the accused want to plead that it is not he, who filled up the body of the cheque; rather it is the complainant who filled up the cheque. However, the complainant has not even claimed in the complaint that the accused filled up the cheque. Rather it is the positive case of the complainant that when the cheque was sought to be handed over to the complainant, at that time, the body of the cheque was already filled up, however, the signature of the accused/petitioner was not there. Therefore, the petitioner was asked to put his signatures; so as to complete the cheque. Accordingly, the petitioner put the signatures on the cheque in the presence of the complainant and, thereafter, handed over the same to him. Still, further, it was observed by the trial Court that signatures on the cheque are not even disputed by the petitioner. Accordingly, the Revisional Court held that even as per the law, it is not necessary that the body of the cheque in question must have been filled by the drawer himself. The body of the cheque could have been filed up by anybody. Therefore, this fact is; otherwise also; irrelevant.
The provisions of the Negotiable Instruments Act do not contemplate the fact that the body of the cheque should be filled up by the drawer of the cheque himself. Rather, the provisions speak only qua the signatures of the drawer being present on the cheque/bill of exchange. It is appropriate to have reference to provisions of the Act in this regard. Sections 5 and 6 of the Negotiable Instruments Act, 1881. Section 120 of the Act, creates an estoppel against the drawer of the cheque or maker of a promissory note or bill of exchange; by denying him the right to question the validity of the instrument as originally made or drawn. Therefore, there is no statutory or jurisprudential basis to hold that unless the body of the cheque is filled up by the drawer himself, the cheque would not be taken as having been validly `drawn’ by him. Once the signatures are not denied then it contains an in-built presumption that all the material particulars have been filled up either by the drawer or with his authorisation, unless the drawer proves it otherwise, by leading some other independent evidence.
The fact that the body of the cheque was filled up in handwriting other than that of the drawer of the cheque; is not any proof of the fact that the consent of the drawer; in drawing such a cheque; was missing. If this is permitted then the drawer of the cheque can frustrate the provisions of the Negotiable Instruments Act in; virtually; every case. He can get the cheque prepared as per his choice from some other person and can subsequently start pleading that he had not filled up the body of the cheque or that he had not consented to the filling of the body of the cheque. In such a situation, the payee or the holder in due course would have no means to prove his consent. Otherwise also, since the cheque is not a document that is required to be attested by witnesses for being a valid document, therefore, the complainant is under no legal obligation to examine a witness to prove the due execution of the same. On the contrary, if the drawer of the cheque takes a plea that his consent qua drawing of the cheque was missing, then it is, exclusively; for the drawer to prove the fact that he had not consented to the filling of the body of the cheque.
“This Court finds that as per the statutory provisions the word `drawn’ is not defined by the Act. Even the definition of the cheque is such which may not even require any handwriting of the drawer of the cheque. It can be even any digital format requiring only a digital `signature’. All the provisions of Negotiable Instruments Act only require signatures of the drawer on such instrument for making it a valid tender”. Once the signatures are not disputed; then the cheque has to be taken to have been drawn by the drawer himself, however, subject to the other defences which the drawer may be able to take in accordance with the law. The cheque was filled up by the petitioner in his presence. It was the case of the complainant that the body of the cheque was already filled up and the petitioner only put his signatures in his presence. Therefore, getting compared the handwriting for the purpose of a fact; which is not even claimed by the complainant; would have been a useless exercise. The court does not find any illegality or perversity in the order passed by the Courts below. Even otherwise, the petitioner has already availed his remedy of revision against the order passed by the trial Court.
In this case, much less to speak of any process alien to the law being adopted by the Courts below, as stated above, this Court does not find even any illegality or perversity in the orders passed by the Courts below. Hence, the present petition is, otherwise also, not maintainable.