NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.664 OF 2012

M. ABBAS HAJI                               APPELLANT(S)

                               VERSUS

T.N. CHANNAKESHAVA                          RESPONDENT(S)

J U D G M E N T

DEEPAK GUPTA, J.

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

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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

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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 over-

stepped  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  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

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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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ITEM NO.105               COURT NO.13               SECTION II-C

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal No(s).664/2012

M.ABBAS HAJI                                       Appellant(s)                                 VERSUS

T.N.CHANNAKESHAVA                                  Respondent(s)   Date : 19-09-2019 This appeal was called on for hearing today.

CORAM :           HON'BLE MR. JUSTICE DEEPAK GUPTA          HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Appellant(s) Mr. Sharan Thakur, Adv. Mr. Mahesh Thakur, AOR Mr. Siddarth Thakur, Adv. Mr. Vijay Kumar, Adv. Ms. Sheffali Chaudhary, Adv. Ms. Vipasha Singh, Adv. Dr. Sushil Balwada, AOR

                   For Respondent(s)

Mr. Karunakar Mahalik, Adv. Mr. V. Bishwanath Bhandarkar, Adv. Mr. Sarbendra Kumar, Adv. Mr. H.K. Naik, Adv. Mr. Naresh Kumar, AOR

                              UPON hearing the counsel the Court made the following                              O R D E R

Delay  in  filing  substitution  application  is  condoned.

Application for substitution is allowed and abatement is set-aside.

The appeal is dismissed in terms of the signed non-reportable

judgment.

Pending application(s), if any, stands disposed of.

(ARJUN BISHT)                                   (RENU KAPOOR) COURT MASTER (SH)                              BRANCH OFFICER

(signed non-reportable judgment is placed on the file)

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