GURU FINANCE CORPORATION Vs. MOHAMMED ARIFULLA

JUDGEMENT

(1.) HEARD the learned Counsel for the appellant and the learned Counsel for the respondent.

(2.) THE appellant was the complainant before the court below alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the 'NI Act', for brevity).

(3.) THE learned Counsel for the appellant would point out that the ingredients that make an offence punishable under Section 138 of the NI Act, are all present in the present case on hand, which is not denied by the accused. Though the cheque has been issued on the account of the accused and it is duly signed by him, the contention that the contents or the words and figures in the cheque have been filled in by some one else and not by him, would not be a valid defence to disown the cheque as long as the cheque is admittedly signed by him and issued on his account. The further circumstance that the cheque may be out of the cheque book of the year 1996 and could not have been issued in the year 2006, is again a contention that cannot be readily accepted, for it is open for an account holder to issue a cheque from out of an ancient cheque book and it cannot then be claimed that since the cheque leaf was of the cheque book of previous years, that the transaction could not be held to be valid. This is hardly a ground and the court could not have pronounced that the cheque was not in respect of a particular transaction. Further, the defence is sought to be bolstered by examining PW. 2, who is none other than the brother of the accused. It is pointed out that the complainant had claimed that there was absolutely no transaction between the complainant and the accused whereas, PW. 2 has clearly stated that he wanted a loan from the complainant and on being informed that he could avail of such loan only if he produce a signed blank cheque of a Government Employee alongwith the loan application by a Government Employee, that he had obtained the same from the complainant. This would indicate that the complainant was very much aware of the purpose for which the cheque was being utilised, even if it could be said that this was the line of defence. In any event, the cheque leaf having been admitted, though sought to be negated on the footing that it did not pertain to the transaction under which the appellant was claiming, it could not be said that the burden shifted on the appellant in establishing the several transactions. The learned Counsel, therefore, contends that merely proceeding on the basis that the accused had satisfied the trial court of the particular cheque leaf belonging to a cheque book of the year 1996 and the accused having utilised other cheque books thereafter, by itself, would demonstrate that the cheque leaf was being misused by the accused. It was necessary for the accused to demonstrate as to the manner in which the cheque leaf has come into the hands of the complainant. It is not the case of the accused that his brother, after having obtained the loan application and a blank signed cheque, had indeed obtained a loan and had discharged the entire loan, but the cheque leaf, which was also taken as security, was never returned. In the absence of any such evidence, on behalf of the accused, it could not be presumed that the presumption in favour of the holder of a cheque stood discharged merely by a claim made by the accused that there was a possible transaction by his brother of the year 1996, where the cheque had been issued to the complainant and the complainant had retained the same to misuse the very cheque leaf in the year 2006. The burden was clearly on the accused to establish this circumstance. Therefore, on a mere claim by the accused of the alleged transaction by his brother of the year 1996, it cannot be said that the burden had shifted on the appellant and that the appellant was required to establish that there was indeed genuine transaction of the year 2006.