9911796707
TMI Blog2003 (1) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... sed obtained hire purchase facility from the complainant firm, doing financial business, in respect of her autorickshaw bearing No. KL-10/7100 and received an amount of Rs. 27,950 by executing Ext. P3 agreement on 8-10-1993. The entire amount with interest thereon had to be repaid in 36 instalments. It was alleged that after remitting 8 instalments, the accused defaulted and when the complainant demanded repayment of the entire balance amount, in April 1999, the accused issued a cheque drawn on Dhanalakshmi Bank, Kunnamkulam Branch for an amount of Rs. 36,000. On presentation of the above cheque for encashment, it was dishonoured due to the insufficiency of funds in the account of the accused and after complying with all the necessary legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the cheque had been issued in discharge of a legally enforceable debt and accordingly the accused should have been found guilty of the offence under section 138 of the Act. The definite case put forward by the first respondent was that at the time of executing the hire purchase agreement the appellant financier had obtained two blank cheques signed by the first respondent without any further entries regarding the date, payee s name and the amount and later, after nearly 6 years, the appellant misused the above cheque leaf by making false entries regarding the amount, name of payee and date without the knowledge or consent of the first respondent and thus there had been material alteration of the cheque rendering it void under section 87 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid negotiable instrument, the essential requisite was certainty, regarding the amount to be paid as well as the person to whom amount has to be paid. Bhashyam and Adiga, on N.I. Act 4th Edition at page 64 says : "It is obvious, therefore, that the first and essential requisite is certainty. This means certainty (1) as to the person to make the payment, (2) as to the person to receive it, (3) as to the time and place of payment, (4) as to the conditions of liability, and (5) as to the amount to be paid. This and the following sections endeavour to define and enforce these certainties not in such an exact and technical way as would only embarrass the transaction of business but substantially in a perfect and practical way". Certainty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst any person being a party to that instrument at the time of such alteration provided he himself has not consented to such alteration. The following alterations are to be material, that is alteration of the date, the sum payable, the time of payment, the place of payment, the signature of the drawer and the original payee or addition or deletion or change of the name of the payee therein without the consent of the drawer". A Division Bench of this Court in Bhaskaran Chandrasekharan v. Radhakrishnan [1998] 1 KLT 881 had considered whether the putting of the date in an undated cheque subsequent to the issue of the same when there was no dispute regarding consideration, signature, amount and the name of payee, would amount to materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87 of the Act. 5. When the signature in the cheque was admitted by the drawer even if the other entries in the cheque are disputed, a presumption under section 139 of the Act would arise that the cheque was issued in discharge of a legally enforceable debt. The above presumption is a rebuttable one. Likewise the presumption under section 118 of the Act also is rebuttable. The burden of rebutting the above presumption would be on the accused. The first respondent had let in evidence to establish her contention by examining DWs. 1 and 2 and by Exts. D1 and D2 documents. DW.1, the husband of the 1st respondent had given evidence that when there was default in paying the instalments, the appellant financier repossessed the autorickshaw and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and issue a cheque for the entire balance amount. That too in the light of the evidence of DW. 1 that the autorickshaw had been repossessed by the financier when default was made and it was not returned. The evidence let in by DWs. 1 and 2 in the above circumstances, appears to be reliable and acceptable. The case put forward by the first respondent was more probable and convincing than the case of the appellant. The presumption under sections 118 and 139 of the Act would stand rebutted by the reliable and acceptable evidence and also by preponderance of probability. The court below after considering the entire evidence accepted the defence contention put forward by the first respondent and found her not guilty of the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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