MANU/DE/0756/2012 Equivalent Citation: 2(2012)BC573 IN THE HIGH COURT OF DELHI Crl. M.C. 3485/2010 & Crl.

MA 17131/2010 (stay) Decided On: 01.03.2012 Appellants: Charanjeet Gaba Vs. Respondent: Arjun Lal Ahuja & Anr. Hon'ble Judges/Coram: Hon'ble Mr. Justice M.L. Mehta Counsels: For Appellant/Petitioner/Plaintiff: Mr. G.B. Sewak, Advocate with Ms. Tanmaya Mehta, Advocate For Respondents/Defendant: Mr. Naresh K. Daksh, Advocate Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Negotiable Instruments Act - Section 138; Code of Criminal Procedure (CrPC) - Section 386, Code of Criminal Procedure (CrPC) - Section 391, Code of Criminal Procedure (CrPC) - Section 482 Cases Referred: Ramakant Rai v. Madan Rai MANU/SC/0780/2003 : AIR 2004 SC 77 Case Note: Criminal - Acquittal - Section 391 of Code of Criminal Procedure - Offence committed punishable under Section 138 of Negotiable Instruments Act - Held, there was no restriction in wording of Section 391 of Cr.P.C either as to nature of evidence or that it was to be taken for prosecution only or that provisions were only to be invoked when formal proof of prosecution was necessary - There was also nothing in provision limiting it to cases where there had been some formal defects - Appellate Court cannot order de novo trial while allowing adducing of additional evidence - Impugned order set aside - Matter remanded back to Appellate Court - Applications disposed of. JUDGMENT M.L. Mehta, J. 1. This is a petition under Section 482 Cr.P.C preferred by the petitioner assailing an order dated 14.10.2009 passed by learned ASJ, Karkardooma Courts in Criminal Appeal No. 13/2009. Vide this order, the Appellate Court of learned ASJ set aside the judgment of conviction of respondents herein under Section 138, Negotiable Instruments Act (the Act for short). 2. This petition raises a short, but important question of law relating to powers of the Appellate Court under Section 391 Cr.PC. The respondents herein were convicted under Section 138 of the Act by learned MM vide his judgment dated 17.02.2006. They carried the matter in appeal before the Appellate Court of learned ASJ. Before the Appellate Court, they filed an application under Section391 Cr.PC for leading additional evidence. The same was allowed by learned ASJ vide the impugned order. While allowing this application, the learned ASJ set aside the conviction and remanded the case back to learned MM to decide the matter afresh after taking into account the additional evidence. It is this part of the impugned order of setting aside the conviction and directing the learned MM to decide the matter afresh after taking into account the additional evidence that is under challenge by way of instant petition. 3. So far as the reasoning given by learned ASJ regarding the desirability and necessity of additional evidence that was sought to be led by the respondents under Section 391 Cr.PC was not agitated by the respondents. Thus, I need not dwell into this aspect of the impugned order to see as to whether on merits the order of Appellate Court permitting respondents to lead additional evidence was justified or not. Assuming that the additional evidence that was sought to be led by the respondents was desirable and justified in terms of provisions of Section 391 Cr.PC, I propose to deliberate on the powers of Appellate Court under Section 391 Cr.PC as also to the course that was to be followed by the Appellate Court in allowing additional evidence. 4. For appreciating the provisions of Section 391 Cr.PC can be reproduced as under:

391. Appellate Court may take further evidence or direct it to be taken.

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional

evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.
5. This section contemplates that the Appellate Court may either record further evidence itself or direct it to be taken by the trial court. The powers of the Appellate Court in permitting recording of additional evidence though unbridled, has to be within the ambit and scope of provisions of this Section. For permitting additional evidence at the stage of hearing of appeal, the Appellate Court needed to satisfy that the additional evidence that was sought to be adduced at that stage was necessary. For recording such satisfaction, it was obligatory to record reasons. The expression, if it thinks additional evidence to be necessary is of wide amplitude. The Appellate Court is empowered to exercise the powers to weed out the infirmities in the course of furthering substantial justice. 6. The recourse to this power cannot be made as a matter of routine on the mere asking of any party. This power needs to be exercised sparingly and for well-founded reasons. Though it is not possible to lay down the detailed situations under which such power could be exercised, but some of the situations for exercise of this power may be illustrated as where due to oversight or difficulties, some evidence was not produced or where either party failed to produce evidence despite opportunity given or where the court on account of some carelessness or ignorance omitted to record some relevant evidence. This would all depend upon the facts and circumstances and the nature of additional evidence that was sought to be led at the appellate stage. Further, there is no restriction in the wording of Section 391 Cr.PC either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions are only to be invoked when formal proof of prosecution is necessary. There is also nothing in the provision limiting it to the cases where there have been some formal defects. 7. The main consideration for adopting this course has to be that the ends of justice have to be achieved and there should be no fritter on justice. Use of this provision has to be also cautiously allowed in the backdrop of the finality of criminal proceedings and also that it is not to be used for filing up the lacunae. Once all this is satisfied and it is found that additional evidence is necessary in the interest of justice and without which there would be failure of justice, the Appellate Court would be justified in permitting production of additional evidence. 8. Thus, so far as the powers of the Appellate Court in allowing additional evidence, I do not see any illegality in the impugned order. The question that arises for consideration is as to the course that was to be followed by the Appellate Court while allowing additional evidence. The Appellate Court could take additional evidence itself or direct the trial court to record the same. This section does not authorize the Appellate Court to set aside the conviction and remand the case back to the trial court for recording the evidence. Such additional evidence is taken in the manner prescribed in Chapter XXIII Cr. PC. The Appellate Court cannot order de novo trial while allowing adducing of additional evidence. The section does not envisage retrial. No doubt, the Appellate Court has the power to reverse the judgment of the trial court under Section 386 Cr.P.C. but that could not be done as a matter of routine and certainly not while disposing of an application under Section 391 Cr. PC. For reversing the judgment of trial court under Section 386 Cr. PC, different considerations and reasons need be examined by the Appellate Court and for which imperative reasons are required to be recorded. (Ramakant Rai Vs. Madan Rai MANU/SC/0780/2003 : AIR 2004 SC 77) 9. The learned ASJ while allowing the application under Section 391 Cr. PC has set aside the conviction order and ordered for the fresh decision. This is where grave error has been committed by the Appellate Court. The right course for the Appellate Court was to keep the conviction order in abeyance by staying its operation and to either record the evidence itself or to direct it to be recorded by the trial court and then to proceed to dispose of the main appeal in the light of such additional evidence. 10. In view of foregoing discussion, the impugned order of learned ASJ is untenable and thus set aside. The matter is remanded back to the Appellate Court of ASJ with the directions to proceed to record the additional evidence in the manner indicated above and then dispose of the appeal on merits. The parties are directed to appear before District & Sessions Judge, Delhi on 24.3.2012 at 2.30 pm. 11. The petition and the applications stand disposed of accordingly. Copy of this order be circulated to all Judicial Officers of District Courts. Manupatra Information Solutions Pvt. Ltd.

MANU/KE/0622/2007 Equivalent Citation: III(2008)BC91, ILR2007(3)Kerala312, 2007(2)KLJ673 IN THE HIGH COURT OF KERALA Crl. M.A. No. 7686 of 2007 in Crl. R.P. No. 116 of 2006 Decided On: 19.07.2007 Appellants: K.R. Aravindakshan Nair Vs. Respondent: Essen Bhankers and Anr. Hon'ble Judges/Coram: V. Ramkumar, J. Counsels: For Appellant/Petitioner/Plaintiff: Gracious Kuriakose, Adv. For Respondents/Defendant: K.S. Sivakumar, PP Subject: Criminal Subject: Law of Evidence Catch Words Mentioned IN Acts/Rules/Orders: Negotiable Instruments Act, 1881 - Section 138; Indian Evidence Act - Section 73; Code of Criminal Procedure (CrPC) - Section 391(1), Code of Criminal Procedure (CrPC) - Section 397, Code of Criminal Procedure (CrPC) - Section 401 Cases Referred: O. Bharatha v. K. Sudhakeran and Anr. AIR 1996 SC 1140; State (Delhi Administration) v. Pali Ram AIR 1979 SC 14; Ajit Savant Majagvai v. State of Karnataka 1997 (7) SCC 110; Shankar Ramachandra Abhyankar v. Krishnaji Dattaraya Bapat AIR 1970 SC 1; Thambi v. Mathew 1987 (2) KLT 848; State of Kerala v. Ussain 1990 (1) KLT 498 *Case Note: Evidence Act, 1872 (Central Act 1 of 1872) - Section 73--Comparison of signature by Court-Normally Court need not take upon itself the task of comparing the disputed signature with admitted signature or handwriting--In case of slightest doubt Court should refer the matter for expert opinion. Revision Petitioner, accused in a prosecution under Section 138 of Negotiable Instruments Act filed petition to get the disputed signature in a document compared with his admitted signature. He contended that the document produced is fabricated by complainant and that he had not executed such a document. Revision Petitioner averred that the Counsel engaged by him passed away during trial and a relatively inexperienced Counsel conducted the trial and hence did not take steps to send the document for opinion of handwriting expert. Party Respondent resisted the petition and contended that the Court itself compared the signatures and that accused did not dispute the signature in the cheque. The Hon'ble Court compared the signature and found that there is dissimilarity in the signatures and directed the Magistrate to send the signatures for opinion of the expert; Held: When the court itself entertained some doubt after observing the discrepancies in the signatures, the court should not have ventured to form an opinion merely because Section 73 of the Evidence Act enables the court to compare the signatures. Even though, there is no bar for the court to compare the admitted signatures/writings with the disputed signatures/writings and come to its own conclusion, it would be more prudent to require the opinion of an expert. [See O. Bharathan v. K. Sudhakaran and another A.I.R. 1996 S.C. 1140 and State (Delhi Administration) v. Pali Ram A.I.R. 1979 S.C. 14]. As a matter of extreme caution and judicial sobriety the court should not normally take upon itself the task of comparing the disputed signature with the admitted signature or handwriting and in the event of the sightest doubt, the court should leave the matter to the wisdom of an expert. ORDER V.R. Ramkumar, J. 1. The petitioner herein is the revision petitioner/accused in a prosecution under Section 138 of the Negotiable Instruments Act, 1881. The request of the petitioner in this petition is to get the disputed signature in Ext. P10 compared with the admitted signatures of the petitioner by a handwriting expert of the Forensic Science Laboratory, Thiruvananthapuram. 2. The case of the first respondent/complainant who is a money lender is that the accused borrowed a

sum of Rs. 4.25 lakhs as evidenced by Ext. P10 voucher dated 9-4-1999 and towards discharge of the said liability the accused issued Ext. P4 cheque dated 14-3-2002 for Rs. 6,10,000/- and on presentation of the cheque in the drawee bank it bounced. 3. The revision petitioner inter alia took up the stand that in relation to certain previous transactions with the complainant bank, five blank cheques were taken by the complainant from the revision petitioner and Ext. P4 cheque is one of those cheque and the signatures in Ext. P10 voucher as well as Ext. P4 cheque were forged. 4. The revision petitioner has a grievance that one Advocate Mohan was engaged by him to appear for him in the trial court and the said Advocate expired during the pendency of the case and since a junior advocate was thereafter appearing for the petitioner, he did not take prompt steps for getting the disputed signature examined by an expert. 5. The learned Counsel appearing for the first respondent/complainant opposed the application contending inter alia as follows:

The revision petitioner/accused had not cared to send even a reply to the statutory notice sent by him. No such petition was filed by him before the trial court. Notwithstanding slight discrepancy, the signatures in Ext. P4 cheque and Ext. P10 voucher resemble the undisputed signatures of the accused in his vakalath, deposition (DW1) etc. The trial court has noticed that his own admitted signature in Ext. P9 postal acknowledgment differs from his own other admitted signatures. He did not dispute his signature in Ext. P4 cheque and, therefore, the question of comparing the signatures by a handwriting expert does not arise.
6. I am afraid that I cannot agree with the above submissions on behalf of the complainant. The accused has offered an explanation as to why no reply was given by him to the statutory notice. According to him, after receipt of the said notice, when he approached the complainant, the complainant assured him that he need not take the notice seriously and accordingly took the notice from the accused who was thus disabled from preparing a reply to the notice. He has similar explanation as to why no such petition was filed before the trial court. The counsel whom he had engaged to conduct the case passed away and it was a relatively inexperienced junior who conducted the case. 7. It cannot be said that the signatures in Exts. P4 cheque and P10 voucher resemble the admitted signatures of the accused. I have attempted a comparison of the signature found in Ext. P4 cheque and Ext. P10 voucher with the undisputed signatures of the accused in his deposition as D.W. 1. There appears no similarity at all in the signatures in Ext. P4 and P10 with admitted signatures of the accused in his deposition. In fact, in paragraph, 10 of the judgment of the trial court it is observed that there is some dissimilarity in the signature in Ext. P10 voucher with the signature of the accused in Ext. P4 cheque and with the signatures of the accused in the bail bond, vakalath and deposition etc. No doubt, the admitted signatures of the accused in Ext. P9 postal acknowledgment card does not bear any similarity with his admitted signatures in the vakalath, bail bond and deposition. No two signatures of the same person can ever be identical in all respects. But the essential and unique characteristics of the writings of a person will invariably be present even if those signatures were to be replicated by the same person. The discrepancies in such a case will be within the natural variations. When the courts itself entertained some doubt after observing the discrepancies in the signatures, the court should not have ventured to form an opinion merely because Section73 of the Evidence Act enables the court to compare the signatures. Even though, there is no bar for the court to compare the admitted signatures/writings with the disputed signatures/writings and come to its own conclusion, it would be more prudent to require the opinion of an expert. (See O. Bharatha v. K. Sudhakeran and Anr. MANU/SC/0305/1996 : AIR1996SC1140 and State (Delhi Administration) v. Pali Ram MANU/SC/0189/1978 : 1979CriLJ17 ). As a matter of extreme caution and judicial sobriety the court should not normally take upon itself the task of comparing the disputed signature with the admitted signature or handwriting and in the event of the slightest doubt, the court should leave the matter to the wisdom of an expert. (Ajit Savant Majagvai v. State of Karnataka MANU/SC/0822/1997 : 1997CriLJ3964 ). 7.1. After comparing the signatures in Exts. P4 cheque and P10 voucher with the admitted signatures of the accused in his deposition as D.W. 1 and other admitted signatures, I entertain serious doubt as to the genuineness of the signatures on Ext. P4 cheque and Ext. P10 vouchee and also the writing of the name of the accused in Ext. P10. It will be unsafe, if not hazardous for the court to attempt a comparison unaided by the scientific opinion of an expert. I am therefore of the view that without getting an expert opinion regarding the above, this Court should not venture to decide the matter on the merits. I do not consider it necessary to set aside the impugned judgments and remit the entire case to the trial court. It will be sufficient to call for a finding from the trial Court. Even though this is a revision it is well settled that the revisional jurisdiction is another facet of the appellate jurisdiction. (Vide Shankar Ramachandra Abhyankar v. Krishnaji Dattaraya Bapat MANU/SC/0456/1969 : [1970]1SCR322 , Thambi v. Mathew 1987 (2) KLT 848, State of Kerala v. Ussain 1990 (1) KLT 498). If so, this Court can invoke the power under Section 391(1) Cr.P.C. read with Sections 397 and 401 Cr.PC. and direct the trial Magistrate to send the disputed signature in Ext. P4 cheque and the disputed writing of the name of the accused and the disputed signature in Ext. P10 voucher to the handwriting expert in the Forensic Science Laboratory, Thiruvananthapuram for comparison with the admitted writings and signatures of the accused. The records in this case shall, accordingly be forwarded to the Chief Judicial Magistrate, Pathanamthitta who shall send the disputed signature in Ext. P4 cheque and the disputed writings including the signature in Ext. P10 voucher to the handwriting expert in the Forensic Science Laboratory, Thiruvananthapuram for comparison with the admitted writings and signatures of the accused. After receipt of the report from the expert, the

Chief Judicial Magistrate shall record his findings in that behalf and forward the findings to this Court within four months of receipt of a copy of this order. Parties shall appear before the trial Magistrate on 8-8-2007 without any further notice. The lower court records shall be forwarded to the trial Court forthwith. Post the above Crl. R.P. No. 12-12-2007. *A reproduction from ILR (Kerala Series) Manupatra Information Solutions Pvt. Ltd.

MANU/KE/0311/2010 Equivalent Citation: 2010(4)Crimes143 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl. Rev. Pet. No. 1188 of 2005 Decided On: 09.04.2010 Appellants: S. Devan, Cine Artist Vs. Respondent: C. Krishna Menon 'Sowparnika' and State of Kerala rep. by Public Hon'ble Judges/Coram: R. Basant and M.C. Hari Rani , JJ. Counsels: For Appellant/Petitioner/Plaintiff: G. Janardhana Kurup, Sr. Adv. For Respondents/Defendant: K. Ramakumar, Sr. Adv. Subject: Banking Subject: Law of Evidence Catch Words Mentioned IN Acts/Rules/Orders: Negotiable Instruments Act - Section 138, Negotiable Instruments Act - Section 139; Indian Evidence Act - Section 73, Indian Evidence Act - Section 118; Code of Criminal Procedure (CrPC) - Section 315, Code of Criminal Procedure (CrPC) - Section 357(1), Code of Criminal Procedure (CrPC) - Section 391; Indian Penal Code (IPC) - Section 420 Cases Referred: Thomas Varghese v. P. Jerome 1992 Cri.L.J. 380; Rejikumar v. Sukumaran 2002 KHC 409; M.I. Kumaran v. Abdul Karim and Anr. 2006(1) K.L.D. (Cri) 811; Goaplast Pvt. Ltd. v. Chico Ursula D'Souza 2003(2) K.L.T. 16 (SC); N.E.P.C. Micon Ltd. v. Magma Leasing Ltd. A.I.R. 1999 S.C. 1952; Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. A.I.R. 2001 S.C. 676; Nanjundappa v. Hanumantharayappa 2008(2) K.L.T. 851; Sadanandan Bhadran v. Madhavan Sunil Kumar 1998(2) K.L.T. 765 (S.C.); Anil Kumar v. Shammy 2002(3) K.L.T. 852 Citing Reference: Discussed 7 Distinguished 1 Mentioned 1 Case Note: Criminal Evidence Section 73 of Evidence Act, 1872 - Trial Court and Appellate Court held Accused guilty for offence under Section 138 of of Negotiable Instrument Act, 1881 Hence, this Petition Whether, revisional jurisdiction of superintendence and correction could be warranted and Courts below erred in invoking power under Section 73 of Evidence Act and that cheques were issued for due discharge of legally enforceable debt/liability Held, there was no specific denial of genuineness of signatures in Ext.P1 in Ext.P4 and request to forward cheques to expert at appellate stage was bona fide and acceptable However, mere fact that Banker had included reason that signatures differed was feeble and unacceptable reason to persuade to find fault with Appellate Court under Section 391 Cr.P.C.- Thus, innocuous incongruity pointed out between pleadings and precise nature of transaction proved was not sufficient to discharge burden under Section 139 by Accused Hence, finding of Courts below that cheques were signed, executed and handed over by Accused to complainant, issued for due discharge of legally enforceable debt/liability and that presumption under Section 139 of Act, do not warrant interference Petition partly Allowed. Criminal Conviction - Section 138 of Negotiable Instruments Act, 1881 Whether, prosecution could lie against drawer of cheque, and was maintainable, and was barred by limitation as notice of demand was not issued within reasonable time Held, endorsement made by banker while returning cheque could not be decisive factor However, Courts were obliged to consider that real reason for dishonour was insufficiency of funds or not Thus, if it was a matter of fact that signatures were not genuine, Section 138 of Act, could not apply Moreover, mere fact that "signature differs" was one of reasons for dishonour of cheque, was sufficient to conclude that period of limitation could start even before cause of action had arisen - Signatures were affixed by Accused in presence of Complainant Therefore, mere fact that in notice and in complaint, complainant alleged mala fides, fraud and an

intention on part of Accused, could not militate against maintainability of prosecution under Section 138 of Act - Period of about 12 years had elapsed from date of cheques Civil Court was already seized of matter and decree was granted in favour of complainant - Hence, leniency could be shown on question of sentence and that complainant was fairly and justly compensated, could be taken care of - Petition partly Allowed. Ratio Decidendi: Mere assertion by one party, and denial by another, shall not be sufficient for Court to undertake adjudication into such aspects. ORDER R. Basant, J. 1. i) Does a cheque cease to be a cheque merely because the drawer raises a dispute about the execution of the cheque and the genuineness of the signature in the cheque?

ii) Does it cease to be a cheque when a banker constrained to dishonour the cheque of a valued customer instead of returning it with the endorsement that there is no sufficient funds includes the reason that the signature differs? iii) Is an obliging banker making such an endorsement to be reckoned as the final arbiter of culpability in a prosecution for the offence under Section 138 of the Negotiable Instruments Act. iv) Does not the court have jurisdictional competence in a prosecution under Section 138 of the Negotiable Instruments Act to ascertain the real reason for the dishonour of the cheque notwithstanding the purported reasons stated by the Banker? v) Does the decision in Thomas Varghese v. P. Jerome 1992 Cri.L.J. 380 require or warrant reconsideration? vi) Is there a conflict between the decision in Rejikumar v. Sukumaran 2002 KHC 409 and the decision in M.I. Kumaran v. Abdul Karim and Anr. 2006(1) K.L.D. (Cri) 811.
2. These interesting questions arise for consideration in this revision petition which has come up before us on a reference by a learned single Judge, who appears to have doubted the correctness of the decision in Thomas Varghese (Supra). 3. We have heard the senior Counsel Sri. G. Janardhana Kurup for the revision petitioner/accused and Ms. Saritha David Chungath for the respondent/complainant. The parties shall be referred to in this order as accused and complainant respectively for the sake of easy reference. 4. The facts scenario which is not in dispute can be summarised as follows: 5. Four cheques each for Rs. 5.5 lakhs marked as Ext.P1 respectively in the four cases which have been disposed of by a common judgment are the subject matter of these prosecutions. A monetary transaction between the parties is admitted and is not disputed. That there is an undischarged liability for the accused to pay amounts to the complainant is admitted. That the cheques in question are drawn on cheque leaves issued by the Banker of the accused to the accused to operate his Bank account is again admitted. That the complainant is an affluent businessman and the accused is an educated cine artist is also accepted and conceded. That there was correspondence between them about the discharge of the liability and time required for discharge of the liability is also admitted. That the cheques were successively presented for encashment and were dishonoured is admitted. That the cheques were finally presented for encashment and were dishonoured on 08/03/1999 is also admitted. That all the four cheques were dishonoured on 08/03/1999 on the twin grounds - "signature differs and funds insufficient" is again admitted. That the statutory time table has been scrupulously followed after that last dishonour is also conceded. That there was no funds available in the account to honour the cheque on the date of dishonour (8/3/1999) is also not disputed. That the accused had come to know of the earlier attempts for presentation of the cheque and dishonour of the same prior to its final presentation is also conceded. That the accused had not taken any steps after coming to know of such earlier instances of presentation and dishonour is also not disputed. Till now, no action has been taken against the complainant by the accused for alleged misuse of the cheques and that is also not disputed. 6. To the controversy now. The complainant alleged that the cheques were issued to him for the due discharge of a legally enforceable debt/liability. According to the complainant, the accused owed an amount of Rs. 20 lakhs. It was not repaid in time. For return of the said amount of Rs. 20 lakhs along with interest which was fixed at Rs. 2 lakhs, four cheques each for Rs. 5.5 lakhs (total Rs. 22 lakhs) were allegedly issued by the accused to the complainant. Those cheques are marked as Ext.P1 (four cheques) in this prosecution. When the complainant presented the same and it was returned on the twin grounds referred above, the complainant suspected that the accused had fraudulently affixed a different signature with malicious intent to defraud him. The complainant contended that notwithstanding the obliging additional reason shown by the banker that "the signature differs" the real reason for dishonour was insufficiency of funds. The accused, on the contrary, took up a stand towards the fag end of the trial that the cheques were not issued by him to the complainant for the due discharge of any legally enforceable debt/liability. He took a stand during cross examination of PW1 and during 313 examination that the cheque leaves were fraudulently and clandestinely obtained, his signatures were forged in those cheques and those cheques were misused and presented for

encashment before the Banker by the complainant. 7. Separate trials commenced. The complainant was examined in all the four cases and documents were marked separately. At that juncture, it appears, joint trial was ordered. The trial continued. The complainant was cross examined in one case after the cases were consolidated. Exts.P1 to P4 were marked in all the four cases. They are the cheques, memo of dishonour, copy of notice and reply notice respectively. Exts.P5, P5(a) and P6 were marked in common after the cases were consolidated and the consolidated trial proceeded. Exts.D1 to D18 were marked by the accused. No oral evidence was adduced by the defence. 8. The courts below - the trial court and the appellate court, concurrently held that the complainant has succeeded in establishing that the cheques in question were issued by the accused to the complainant for the due discharge of a legally enforceable debt/liability. The courts came to the positive conclusion that the cheques were signed executed and handed over by the accused to the complainant. The courts further found that notwithstanding the further reason shown that the signature in the cheques differ, the real reason was insufficiency of funds. The courts further held that the statutory time table has been scrupulously followed by the complainant. In these circumstances, the courts proceeded to hold that the complainant has succeeded in establishing all ingredients of the offence under Section 138 of the Negotiable Instruments Act in all the four cases. Accordingly, the courts below proceeded to pass the impugned judgments. 9. Before us, the concurrent verdict of guilty, conviction and sentence are assailed on various grounds. We may, at the outset, attempt to specify the grounds of challenge. They are:

1. The finding of fact that the cheques were written, signed and handed over by the accused to the complainant warrants interference invoking revisional jurisdiction of superintendence and correction. 2. The courts below erred in invoking the power under Section 73 of the Evidence Act to compare the signatures in Ext.P1 cheques with other admitted signatures. 3. The courts below erred in coming to the conclusion that the cheques were issued for the due discharge of a legally enforceable debt/liability. 4. The courts below ought to have held that when dishonour by the banker was not on one of the two grounds referred to in Section 138 of the Negotiable Instruments Act, no prosecution whatsoever can lie against the drawer of the cheque. 5. The complainant having chosen to make allegations of the offence punishable under Section 420 I.P.C. in the complaint against the accused, this prosecution under Section 138 of the Negotiable Instruments Act is legally not maintainable. 6. The courts below should have held that the prosecution is barred by limitation inasmuch as notice of demand had not been issued within the period stipulated from the date of first dishonour on the ground, inter alia that the signature in the cheques differed. 7.The sentence imposed is excessive.
10. We have been taken through the oral and documentary evidence available in the case in detail. We have been taken through the complaint, answers given by the accused in 313 examination and all other relevant matters. We have been taken through the order of reference by the learned single Judge also meticulously and in detail. 11. At the very outset, we must remind ourselves of the nature, quality and contours of the jurisdiction of a revisional court. The jurisdiction of revision is essentially the power and the duty of superintendence and correction. In an appropriate case where the concurrent findings of fact are grossly incorrect and perverse, nothing can stop this Court from invoking the revisional jurisdiction of superintendence and correction to interfere with such grossly erroneous or perverse findings of fact. It is unnecessary to refer to precedents which have been copiously cited at the bar and in the order of reference to support the above proposition. The crucial question is whether the findings of fact rendered are so grossly erroneous or perverse as to warrant revisional interference. While considering this question, no court of revision can afford to ignore the fact that normally respect and regard must be given to the findings of fact concurrently affirmed by two courts. The trial court has the advantage of seeing the witnesses perform in the witness stand before it and that evident advantage which a trial Judge has, in the matter of appreciation of evidence, cannot be lost sight of. 12. Having thus reminded ourselves of the nature, quality and contours of the revisional jurisdiction and of the power which undoubtedly is available with the revisional court to interfere with the finding of fact which are grossly erroneous or perverse, we shall now consider the challenge raised on grounds 1 to 3. 13. It is again unnecessary to advert to precedents, it is by now trite and well established that the burden is on the complainant in a prosecution under Section 138 of the N.I. Act to prove his case beyond doubt as is expected in every prosecution for a criminal indictment. In the instant case, we have the oral evidence of PWs.1 and 2 about the execution of the cheques. The learned Counsel for the accused contends that the oral evidence of PWs.1 and 2 do not deserve to be accepted at all. The Counsel argues that PW2 was just a casual witness who allegedly happened to be present with the complainant when the cheques were allegedly handed over by the accused. Primarily, we have the oral evidence of PW1. His oral evidence is eminently supported by his ability to produce Ext.P1 cheques (four in number) which are admittedly drawn on cheque leaves issued to the accused by his banker to operate his account. The oral evidence of PW1 gets further support and assurance from the admitted

circumstance that there was a financial transaction between the accused and the complainant. Ext.P5 as well as Exts.D1 to D17 eloquently declare that the oral evidence of PW1 that there was monetary transaction between the parties and that some amount remained to be paid by the accused to the complainant is correct. To crown all other circumstances is the crucial circumstance that the accused, even after admittedly coming to know that cheques were presented before his Banker and attempt was made to collect amounts by presentation of such cheques remained silent, mute and inactive. Admittedly, even after coming to know that Ext.P1 cheques had been presented once or twice and were returned, dishonoured the accused did not take any steps to instruct his Banker to stop payment. He did not choose to call upon the complainant not to present the cheques. Even after coming to know that the cheques had been presented, accused had not raised a little finger against the complainant. According to the accused now, the cheques were stolen from his premises. His inaction, even after coming to know that the stolen cheques were being used to withdraw the amounts from his account, is eloquent. All these are circumstances which must weigh with a prudent mind while attempting to decide whether the oral evidence of PW1 can be accepted or not. 14. Of course, there is the evidence of PW2 also. The courts below did not find any reason to reject and discard the evidence of PW2. The question certainly is not whether, we, sitting as an original court for appreciation of facts would have chosen to place reliance on the oral evidence of PW2 or not. The question is whether the revisional powers of superintendence and correction deserve to be invoked to interfere with the findings of fact concurrently recorded by the two courts. The courts below have chosen to accept and act upon the oral evidence of PW1 which is entirely supported by the oral evidence of PW2 and we find that the courts below have not committed any error warranting revisional interference in accepting the testimony and recording such findings of fact. Even if the oral evidence of PW2 were eschewed the court below cannot be said to have committed any error warranting revisional interference in choosing to accept and act upon the testimony of PW1, the complainant. 15. The unsubstantiated version of the accused also does go a long way to assure the court about the acceptability of the oral evidence of PW1. According to the accused, there was a business transaction. He does not dispute that he had a liability to discharge to the complainant. This is evident from the fact that Ext.P5 is not disputed. Exts.D1 to D17 also confirm that fact. 16. The accused surprisingly has not chosen to specify what, if not Rs. 22 lakhs, is the amount, which he is legally liable to pay to the complainant. The accused takes a vague and evasive stand that there is unspecified liability to be discharged but the cheques were not issued by the accused to the complainant. The cheque leaves were stolen by the complainant and misused in an attempt to siphon out funds of the accused. That is the plea. 17. A careful reading of Ext.P3 notice of demand and Ext.P4 reply notice is in this context essential. Ext.P3 is a notice of demand issued by the Counsel for the complainant on behalf of the complainant. Ext.P4 is reply issued by the accused himself to the Counsel. A total and careful reading of Ext.P4 is essential and when so read, no prudent mind can be left with any semblance of doubt that the accused did not choose to dispute the genuineness of the signatures in Ext.P1 cheques or the fact that they were handed over by the accused to the complainant. Of course, vague and non specific denials are also raised in Ext.P4. The document must and has to be read as a whole and when so read crucial indications are available. The accused it is crucial did not choose to deny the genuineness of the signatures in Ext.P1 cheques. The purpose for which they were handed over, was of course disputed, though the existence of some liability was not disputed as such. The accused took up a contention that he has an alias name also. Mohan and Devan are two names in which he holds himself out to the world. He sign in both names. In fact, Ext. P4 clearly shows that he receives cheques and drafts in both names. He maintains this stand in Ext.P4 and asserts that he has issued written instruction to his bank that he signs as Devan also. In the four cheques (Ext.P1), he has signed as Devan. The complainant in Ext.P3 in the wake of dishonour on the ground of "signature differs" also had raised an allegation that he had signed differently in the cheques maliciously to defraud the complainant. It is in reply to that, that the complainant had asserted in Ext.P4 that he used to sign in both manner and bank has been informed of such course of conduct adopted by him. 18. In Ext.P4, it is significant that the accused did not raise a contention that the cheques were fraudulently, clandestinely and in a malafide manner removed by the complainant from the possession of the accused. But surprisingly in the course of the trial, we find such a case being advanced. Less said about this weird contention raised by the accused belatedly towards the fag end of the trial, the better. A prudent person cannot for a moment accept this bizarre contention advanced by the accused towards the later stage of the trial. Ext.P4, to our mind, eloquently conveys that this defence sought to be urged in the course of the trial cannot stand scrutiny of a reasonable and prudent mind. 19. The courts below, in an attempt to appreciate the evidence of Pws.1 and 2 that the accused had signed the cheques in their personal presence, did look into the admitted signatures of the accused otherwise available and the signatures in Ext.P1 cheques. It is argued that the courts below totally erred in resorting to this course. Precedents are relied on. 20. We find it unnecessary to refer specifically to Section 73 of the Evidence Act which undoubtedly clothes a court with the requisite powers and the court below cannot be found fault with at all for referring to and comparing the admitted signatures and the signatures in Ext.P1 in an attempt to ascertain whether the oral evidence of PWs.1 and 2 about the execution of the cheques can be accepted. It is of course true that when there is a serious dispute, courts should not arrogate to themselves the power to decide and determine the genuineness of signatures, handwritings and thump impressions without expert opinion by its own naked eye comparison. The court may be referred to as the expert of experts, but no finding of a court should ordinarily rest solely on the comparison made by the court under Section 73 of the Evidence Act in the absence of evidence of any expert. 21. That is not the situation in the facts of the instant case. The court did not choose to peruse the

documents and venture an opinion under Section 73 of the Evidence Act at all. Forced to choose between the version of the complainant and the stand taken by the accused, the court was obliged to decide whether the oral evidence of PW1 and of course PW2 can be accepted or not. It is for this purpose that the courts below referred to the admitted and disputed signatures and came to the conclusion that the oral evidence of PWs.1 and 2 can be preferred to the belated stand/version taken by the accused in the course of trial and which was not taken in Ext.P4 notice. 22. It is then contended that an application filed by the accused to send the cheques to the expert before the appellate court was not allowed. The appellate court should have invoked its power under Section 391 Cr.P.C. to forward the cheques to the expert and secure expert opinion, it is contended. One of the easiest ways to secure protraction of trial is to make a request to send the cheques to the expert. Every such request will not be automatically and ritualistically be accepted and allowed by a Judge. Sufficient and satisfactory reasons must be shown to exist to justify such reference to an expert. In the instant case the accused had not made any such request before the trial judge. The totality of the circumstances to which we have already referred, particularly the fact that there is no specific denial of the genuineness of the signatures in Ext.P1 in Ext.P4 - nay there is a veiled admission also, does show convincingly that the request to forward the cheques to the expert at the appellate stage was not bona fide or acceptable. We are unable to agree that the lower (appellate) court has committed any error in not forwarding the cheques to the expert. That would have been an unnecessary and meaningless exercise, according to us. The mere fact that the Banker had included the reason that the signatures differed (not even that the signatures do not appear to be genuine) is, according to us, too feeble and unacceptable a reason to persuade us to find fault with the appellate court for not invoking such powers under Section 391 Cr.P.C. 23. It is next contended that at any rate it has not been established that the cheques had been issued for the due discharge of a legally enforceable debt/liability. We have already concurred with the conclusions of the courts below that the cheques were signed, executed and handed over by the accused to the complainant. It is not the law at all that in a prosecution under Section 138 of the Negotiable Instruments Act, the complainant must establish the original cause of action in meticulous details. That is precisely why the presumption under Section 139 of the Negotiable Instruments Act has been incorporated in addition to the presumption under Section 118 of the Evidence Act which was already there. It is unnecessary to refer to the various precedents that have been cited at the Bar. We need only reiterate that once the signature, execution and handing over of the cheque is satisfactorily proved by the evidence by the complainant, presumption under Section 139 of the N.I. Act comes into play and the same holds the field until the accused discharges the burden on him at least by the inferior standard of preponderance of possibilities and probabilities as applicable in a civil case. 24. Exts.D1 to D17 produced by the complainant themselves show that there has been a monetary transaction between the parties and there was liability for the accused to the complainant. Last trace of doubt, if any on this aspect is sought to be set at rest by the complainant by the proof of Ext.P5 which is not disputed at all. This, therefore, is an eminently fit case where the presumption under Section 139 of the N.I. Act must come into play. The onus must switch to the accused to discharge his burden. 25. The learned Counsel for the accused laboriously contends that there has been an inconsistency/incongruity between the precise nature of the liability averred in the complaint and the nature of liability which was sought to be proved by evidence in the course of trial. In the notice and in the complaint, it was averred that an amount of Rs. 20 lakhs had been borrowed by the accused from the complainant as a loan. But Exts.D1 to D17 as also the evidence tendered in the case show that it was not a pure and simple transaction of borrowal of money. 26. This must persuade this Court to throw overboard the entire case of the complainant, it is contended. 27. It is true that the averments in the notice and the complaint did not advert to the details. But the case of the complainant is clear. There was a proposal to make a film by name Bhadram. This project was sought to be undertaken by the parties. The project did not come through. There was an agreement that for a total amount of Rs. 20 lakhs, the project shall be taken over by the accused. It is for discharge of this liability that this amount of Rs. 20 lakhs was agreed to be paid. This included the amounts which the complainant had already paid to various persons. The nature of the transaction is now clear from the evidence of the complainant (PW1) and Exts.D1 to D17. In any view of the matter, notwithstanding the innocuous inconsistency between the real nature of the transactions and the pleadings in the complaint and the notice, we are unable to agree that the burden on the accused under Section 139 of the N.I. Act has been discharged. 28. We are in ready agreement that the accused is not bound to adduce any defence evidence. Under Section 315 Cr.P.C., the non-examination of the accused cannot even be commented by the adjudicator. But the burden rests squarely on the shoulders of the accused. Once the presumption under Section 139 comes into play, that burden, we must hold, has to be discharged by the accused. The alleged innocuous incongruity pointed out between the pleadings and the precise nature of the transaction proved is not sufficient to discharge the burden. We do, in these circumstances, come to the conclusion that the finding of the court below that the cheques were signed, executed and handed over by the accused to the complainant, that they were issued for the due discharge of a legally enforceable debt/liability and that the presumption under Section 139 of the Negotiable Instruments Act has not been rebutted by the accused are eminently correct and the same do not warrant interference. The challenge on grounds 1 to 3 is thus rejected. 29. We now come to the question of law raised. That is the 4th ground of challenge. The learned Counsel contends that the banker having chosen to dishonour the cheques on the twin grounds, i.e. "signatures differ and funds insufficient", Section 138 of the Negotiable Instruments Act can have no application at all. According to the learned Counsel, the Banker's endorsement is of crucial relevance. The cheques having been returned for the reason that the signatures differ, the cheques cannot be

reckoned as cheques at all. In order to be a cheque, the instrument must be a Bill of Exchange. In order to be a Bill of Exchange, it must bear the signature of the drawer. Inasmuch as the Bank has returned the cheques with the endorsement that the signature of the drawer differs, the cheques cannot be reckoned as cheques and the consequent dishonour is not dishonour of a cheque. At any rate it is not the dishonour for the reasons contemplated under Section 138 of the Negotiable Instruments Act. Counsel contends that in these circumstances the dishonour of the cheques for the reason that the signatures differ also cannot attract culpability under Section 138 of the Negotiable Instruments Act. 30. We think that the question has already been concluded by binding decisions of courts. The Supreme Court in the decisions in Goaplast Pvt. Ltd. v. Chico Ursula D'Souza 2003(2) K.L.T. 16 (SC) and N.E.P.C. Micon Ltd. v. Magma Leasing Ltd. MANU/SC/0306/1999 : A.I.R. 1999 S.C. 1952 has taken the view that notwithstanding the fact that where cheques were dishonoured for the reasons "stop payment" and "account closed", it is open to the court to come to a finding that the real reason was insufficiency of funds and consequently conviction can be entered under Section 138 of the Negotiable Instruments Act. A Division Bench of this Court in Thomas Varghese (supra) has proceeded to observe as follows in paragraph 6:

6. From the argument advanced by the learned Counsel representing the petitioner, it would appear that an offence under Section 138 of the Act should depend on the endorsement made by the banker while returning the cheque unpaid, i.e. only when the banker makes an endorsement that the amount of money standing to the credit of the account of the drawer is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank can an offence under Section 138 of the Act be made out. According to us, such an approach will defeat the very purpose of the enactment. The offence under the section cannot depend on the endorsement made by the banker while returning the cheque. Irrespective of the endorsement made by the banker, if it is established that in fact the cheque was returned unpaid either because the amount of the money standing to the credit of the account of the drawer is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, the offence will be established. The endorsement made by the banker while returning the cheque cannot be the decisive factor. (emphasis supplied)
31. Though the law has been so stated clearly in this decision, the learned Counsel for the petitioner contends that this does not represent the correct law. According to the learned Counsel, when the Banker returns the cheques for the reason that the signatures differ, these principles cannot apply and the cheques must be held to be not cheques and culpability under Section 138 of the Negotiable Instruments Act cannot be attracted. It is contended that in Thomas Varghese (supra), the Division Bench had not considered the question as to what would happen when the cheques are not cheques at all for the reason that the signatures appearing on the cheques are not that of the accused. 32. We have no hesitation to agree straight away that if it is proved that the signatures are not genuine and there has been no valid execution, the cheques will be no cheques at all and consequently culpability under Section 138 of the Negotiable Instruments Act will not be attracted. But the crucial question is whether that contention can be accepted. The very important question is whether that question can be decided by the court or the court must reckon itself as a prisoner of the endorsement made by the Banker. 33. In this context we feel that reference to paragraph 3 of Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. MANU/SC/0041/2001 : A.I.R. 2001 S.C. 676 3. The act was enacted and Section 138 hereof incorporated with a specified object of making a

special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instrument is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, including a cheque, the trade and commerce activities, in the present day would, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being negotiated and are easily passable from one hand to another. To achieve the objectives of the act, the legislature has, in its wisdom, thought it proper to make such provisions in the act for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country.
34. It is common knowledge that a Banker will be interested in protecting a valued customer of his. The Banker may not readily make an endorsement that the funds are insufficient. Expressions "refer to drawer" etc. are skillfully employed by the Banker to avoid inconvenience to a valued customer even

when funds are insufficient. Culpability under Section 138 of the Negotiable Instruments Act cannot obviously be left entirely to the Banker who makes the endorsement while dishonouring the cheques. The court in order to effectively implement the scheme under Section 138 of the Negotiable Instruments Act must reserve for itself, the power to decide the real reason that prompted the banker to dishonour the cheques. The reason given by the banker may be relevant. But it is for the court on the basis of the materials available before it come to a definite conclusion as to what was the actual and the real cause for dishonour. It is in this context that the courts will be obliged, notwithstanding the nature of the endorsements made by the banker, to go into the question and decide what the real cause of dishonour is. We have already come to the conclusion while discussing grounds 1 to 3 that in this case the cheques bear the genuine signatures of the accused. In these circumstances, the mere fact that the obliging banker had added one more convenient reason cannot be permitted to frustrate and stultify the working of the legislative scheme under Section 138 of the Negotiable Instruments Act. This contention that the endorsement by the banker has to be treated as sacrosanct and the court is bound to accept the same cannot be accepted at all. 35. In the order of Reference, we find that the decision of a learned single Judge in Rejikumar v. Sukumaran 2002 KHC 409 has been referred to. That was a case where the cheque was dishonoured on the ground of insufficiency of funds. Notwithstanding such dishonour and notwithstanding the fact that notice of demand did not evoke any reply, the learned Judge accepted the contention of the accused that the signature in the cheque was not genuine or true. There was evidence in that case to show that the signature was not genuine or true. It is in that context the court observed that where the cheque was dishonoured on the ground that the signature differ (which contention was found to be correct by the court) culpability under Section 138 of the Negotiable Instruments Act will not be attracted. That decision cannot and does not lay down any proposition contrary to what has been laid down by the Division Bench in Thomas Varghese (supra). We have already extracted the relevant passage in Thomas Varghese (supra) which shows that irrespective of the reasons assigned by the banker, the real reason for the dishonour can be and has to be ascertained by the court. That is what happened in Rejikumar (supra). Notwithstanding the fact that the cheque was dishonoured on the ground of insufficiency of funds, the court in that case held that the real reason for the dishonour must be held to be the non genuine signature. Rejikumar(supra) cannot hence help the revision petitioner. 36. Our attention has also been drawn to the two decisions of learned single Judges of this Court, Hon'ble Justice K.R. Udayabhanu in M.I. Kumaran v. Abdul Karim and Anr. 2006 (1) KLD 811 and Hon'ble Mr. Justice M. Sasidharan Nambiar in the unreported judgment in Crl.A. No. 483/1999 have held that the dishonour by the banker with the endorsement "signature differs" cannot clinch the issue. Both the learned Judges have chosen to follow the decision of the Division Bench in Thomas Varghese (supra). In Rejikumar (supra), no reference is seen made to the decision in Thomas Varghese (supra). In any view of the matter, we are satisfied that the dictum in Thomas Varghese (supra) covers the issue squarely. We are in complete agreement with the said dictum and we find no reason to refer to the question to a larger Bench. 37. We do in these circumstances reiterate the law thus. If the signature in the cheque is proved to be not genuine, the instrument cannot be reckoned as a cheque and the same cannot attract culpability under Section 138 of the Negotiable Instruments Act. But the decision as to whether the signature is genuine and whether the execution is proved will have to be taken by a court, the mere fact that the banker returns the cheque for the reason that the signature differs is no reason for the court to mechanically swallow that reason. The courts are obliged to consider whether the real reason for dishonour is insufficiency of funds or not. We may at the risk of repetition proceed to reiterate that if as a matter of fact the signatures are not genuine and the court finds so, needless to say Section 138 of the N.I. Act would not apply. But the endorsement by the banker is not conclusive. The court will have to ascertain the real reason. The challenge on this ground is in these circumstances, rejected. Ground No. 5. 38. It is contended that the complainant having already alleged in the complaint that the accused had cheated him and has committed an offence under Section 420 I.P.C. by signing differently in Ext.P1 cheques, this prosecution under Section 138 of the Negotiable Instruments Act would not lie. We are unable to accept this contention at all. In fact a careful reading of the notice of demand and pleadings of the complainant clearly show that the signatures were affixed by the accused in the presence of the complainant. When the Banker returned the same with such endorsement that the signatures differ also, the complainant apprehended that the accused must have signed differently to defraud him. This in its crux is the allegation. It will be totally incorrect to say that the complainant had admitted that the signatures were not genuine. Such a specific pleading is not available at all. In the facts and circumstance of this case, the mere fact that in the notice and in the complaint, the complainant alleged mala fides, fraud and an intention on the part of the accused to cheat the complainant, cannot in any way militate against the maintainability of the prosecution under Section 138 of the Negotiable Instruments Act. The challenge on the 5th ground also therefore fails. Ground No. 6. 39. It is contended with the help of the decision of the Karnataka High Court in Nanjundappa v. Hanumantharayappa MANU/KA/8552/2006 : 2008(2) K.L.T. 851 that when the dishonour is on the ground of "account closed" and "the signature differs", the period of limitation must start running from the date of initial presentation. Subsequent presentation cannot give a renewed lease of life for the cause of action, contends the learned Counsel. 40. We have gone through the decision in Sadanandan Bhadran v. Madhavan Sunil Kumar MANU/SC/0552/1998 : 1998(2) K.L.T. 765 (S.C.) which has clearly held that successive presentation within the permissible period of time is justified and can be resorted to. The cause of action for prosecution can arise only when a notice of demand is issued. Till then within the period permitted by Section138 of the Negotiable Instruments Act, any number of re-presentations can be

done. We are unable to accept the general statement made in Nanjundappa (supra) that in such a case the prosecution must be held to be barred by limitation, if notice of demand is not given within the stipulated period from the date of the original dishonour of the cheque. In the instant case, we find that it is the specific case of the complainant that initial dishonour on the twin grounds was conveyed to the accused and the accused wanted the complainant to represent such cheques for encashment. In any view of the matter, we are unable to agree that the mere fact that "signature differs" was one of the reasons for dishonour of the cheque is sufficient to conclude that the period of limitation will start even before the cause of action has arisen as per the decision in Sadanandan (supra). We respectfully disagree with the dictum in Nanjundappa (supra). The challenge on the sixth ground also therefore fails. Ground No. 7 41. The learned Counsel for the petitioner contends that the sentence imposed is excessive. Simple imprisonment for a period of one month and fine of Rs. 6 lakhs is the sentence imposed in each case. The learned Counsel prays that leniency may be shown on the question of sentence and the substantive sentence of imprisonment may be avoided. 42. The cheques in the instant case bear the date 10/9/1998. A period of about 12 years has elapsed from the date of the cheques. The complainant has been compelled to fight three rounds of legal battle by now. The cheques were for an amount of Rs. 5.5 lakhs each. The complainant has been waiting in the queue for justice for the past about 12 years. In the decision in Anil Kumar v. Shammy 2002(3) K.L.T. 852 one of us had adverted to the principles governing the imposition of sentence in a prosecution under Section 138 of the Negotiable Instruments Act. Section 138 of the Negotiable Instruments Act was brought into the statute book in 1988. During the initial period of enforcement of this new law, we agree with the learned Counsel for the petitioner that a deterrent, substantive sentence of imprisonment can be avoided. It must be zealously insisted that the complainant is adequately compensated. It is submitted that the civil court is already seized of the matter and a decree as prayed for has been granted in favour of the complainant. The amount has not been paid so far, it is submitted. The matter is pending in appeal, it is reported. Taking all the relevant circumstances, we are satisfied that leniency can be shown on the question of sentence zealously insisting at the same time that the complainant is fairly and justly compensated. The judgment has been rendered by the Additional Chief Judicial Magistrate who has unlimited pecuniary jurisdiction for imposition of fine. We are satisfied that the fine amount can be enhanced. Direction under Section 357(1) Cr.P.C. can also be modified and justice can thus be achieved in the facts and circumstances of the case. 43. In the result:

a) these revision petitions are allowed in part. b) The impugned verdicts of guilt and convictions of the petitioner in all the four cases under Section 138 of the Negotiable Instruments Act are upheld. c) But the sentence imposed is indulgently modified and reduced. The substantive sentences of imprisonment imposed on the petitioner/accused in all the cases are set aside. The sentences of fine imposed are modified. d) The revision petitioner is sentenced in all the four cases to pay a fine of Rs. 7,50,000/(Rupees seven lakhs and fifty thousand only) each and in default to undergo simple imprisonment for a period of three months each. If the fine amount is realised, an amount of Rs. 7.4 lakhs in each case shall be released to the complainant as compensation under Section 357(1) Cr.P.C. Of this, the amount of Rs. 5.5 lakhs each shall be credited to the principal amount due under the cheques. Out of the balance amount, an amount of Rs. 1.5 lakhs each shall be credited towards the interest payable. The balance shall be credited as costs and expenses incurred for the prosecution of these three tier criminal proceedings. The revision petitioner shall have time till 1/6/2010 to make payment and avoid execution of the default sentence. If the fine amount is not paid on or before that date, the courts below shall immediately proceed to execute the default sentence. Needless to say, the amounts so paid under Section 357(1) Cr.P.C shall be given due credit if the civil Court's decree is confirmed and attempt is made to execute that decree.
44. It is submitted that an amount of Rs. 10 lakhs is lying in deposit before the court below which was deposited by the revision petitioner as per interim orders passed by this Court. The said amount shall forthwith be released to the complainant. Manupatra Information Solutions Pvt. Ltd.