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TMI Blog2008 (3) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... t matters little if the name of the payee, date and amount are filled up at a subsequent point in time, subject of course to what is stated in the proviso to Section 118 NI Act. It is also not possible to agree with the contention that the determination of the time when the signature was appended will somehow explain the fact that the Petitioner has discharged the entire liability even before the cheque was presented for payment. Here two factors need to be noticed. The first is that although the Petitioner claims that he has closed his account in 2001 itself and that these blank cheques were handed over to the complainant prior to that, he did not write to the complainant informing the complainant that the account had been closed. Secondly, although he claimed that he has discharged the liability, admittedly this is only an oral assertion of the Petitioner and no receipts evidencing the payment of ₹ 8 lakhs have been produced in the court. It is pointed out by learned Counsel for the Respondent No. 2 that at the stage of framing of charge, the Petitioner had claimed before the trial court that he had with him the receipts evidencing repayment. However, till date no suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sposed of. - DR. S. MURALIDHAR, J. For the Appellant : Sudhir Nandrajog and Ujjwal K. Jha, Advs For the Respondent : Amrit Kaur Oberoi, Adv. for Respondent No. 2 and Pawan Behl, APP ORDER S. MURALIDHAR, J. 1. These petitions under Section 482 of the Code of Criminal Procedure, 1973 ('CrPC') seek to challenge an order dated 18th July, 2006 passed by the learned Metropolitan Magistrate ('MM') rejecting an application filed by the Petitioner for sending the dishonoured cheques, in respect of which the complaint cases were filed against the Petitioner for the offences under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act'), to the Central Forensic Science Laboratory ('CFSL') for its opinion on the handwriting on the cheques. 2. The cheques in question are Nos. 836720, 445534 and 752076 all dated 1st May, 2004 for a sum of Rs. 1 lakh each in respect of which Complaint Case No. 339 of 2004 was filed, Nos. 328114 dated 11th May, 2004 for a sum of Rs. 2 lakhs and No. 520660 dated 11th May, 2004 for a sum of Rs. 1 lakh in respect of which Complaint Case No. 340 of 2004 was filed, and Nos. 752064 and 555267 both da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was asked to return the cheques and letters he was assured that it would be sent to the Petitioner in due course and that the Petitioner trusted him to do so. A further sum of Rs. 1 lakh was repaid in January 2001 after the Petitioner took a voluntary retirement from PNB in December 2000. It is stated that despite several efforts the Petitioner was unable to get the complainant to return the blank cheques. 4. It is claimed by the petitioner that the complainant had filed the aforementioned three complaints after filling the name of the payee, the date and crossing the cheques. It is alleged that the complainant also filled the date of the cheques in the letters with malafide and dishonest intentions. The Petitioner claimed that after taking voluntary retirement, he closed his staff account with the PNB on 21st March 2001. Further he changed his signature in his saving bank account with Bank of Baroda, Mayur Vihar Phase-III Branch. 5. On the basis of these allegations the accused filed an application in each of the aforementioned complaints on 3rd April, 2006 seeking reference of the cheques to the CFSL for opinion on the handwriting therein claiming that the report of CFSL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant by the petitioner was not a 'cheque' within the meaning of Section 138 NI Act, i.e. a complete cheque with no blanks. 9. Mr. Nandrajog implores the Court to appreciate that the entire evidence was in the control of the complainant and there was no way, without the assistance of the court, the petitioner can expect to bring on record evidence by way of defense. It was finally urged that with a view to dispelling the impression that the petitioner was seeking to delay the completion of the trial and in order to demonstrate his bonafides, the petitioner was willing to deposit in this Court the entire sum of Rs. 8 lakhs and was willing to let the money be paid to complainant if the opinion of the handwriting expert did not substantiate the defense of the petitioner. 10. Reliance is placed by counsel for the petitioner upon the judgment of this Court in BPDL Investments (Pvt.) Ltd. v. Maple Leaf Trading International (Pvt.) Ltd. 129(2006)DLT94 to contend that if there are material alterations in the cheque then such an instrument is rendered void and could not have been presented for payment to the bank. Reliance is also placed on the decision of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any debt or other liability. As regards this ingredient, the complainant contends that the cheques were issued towards the repayment of the loan borrowed by the Petitioner. The Petitioner however disputes that and states that there was no liability to be discharged by the Petitioner by the time the cheques were presented for payment. What requires to be noticed in addition is that even according to the Petitioner, although he purports to have closed his account with the PNB in March 2001 itself, he admittedly did not inform the complainant of this fact or that he had ceased to be in service with the PNB since March 2001. The question of referring, disputed cheques for the opinion of the CFSL has to be understood in the above background. 14. The word cheque has been inclusively defined under Section 6 NI Act to include a 'bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand... . The words bill of exchange have been defined in Section 5 NI Act as an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the above provision, any material alteration to a cheque without the consent of the drawer unless it is made to carry out the common intention of the original parties thereto renders the cheque void, the expression material alteration has not been defined. Significantly, Section 87 has been made subject to Sections 20, 49, 86 and 125 NI Act. These provisions help us to understand what are not considered 'material alterations' for the purpose of Section 87. 18. Section 20 NI Act talks of inchoate stamped instruments and states that if a person signs and delivers a paper stamped in accordance with the law and either wholly blank or have written thereon an incomplete negotiable instrument such person thereby gives prima facie authority to the holder thereof to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp. Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque, it makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of Section 87 NI Act. 21. The position in law has been explained in the judgment of the Division Bench of the Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR 610 in the following words: In the instant case, signature is admitted. According to the drawer of the cheque, amount and the name has been written not by the drawer but by somebody else or by the payee and tried to get it encashed. We are of the view, by putting the amount and the name there is no material alteration on the cheque under Section 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself. In the instant case Bank has never found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been executed. It is pointed out that when the fact of execution of the cheque itself is in dispute plaintiff has to prove also passing of consideration. In other words, only when due execution has been established presumption under Section 118 (a) can be raised. Reference was also made to the decision of the Mysore High Court in Gurubasappa v. Rudriah AIR 1969 Mys. 269. We are of the view, in a given case cheque is issued by the drawer in favor of the payee and the same is dishonoured by the drawer's Bank stating funds insufficient , holder of the cheque is entitled to get the amount as reflected in the cheque since the cheque is a negotiable instrument as per Section 118. We are of the view under Section 118 of the Act until the contrary is proved presumption can be made that every negotiable instrument was made for consideration. The expression until the contrary is proved is relevant under Section 118 of the Negotiable Instrument Act. When the drawer of the cheque did not find any infirmity in the cheque presented by the payee presumption raised under Section 118 would apply unless the contrary is proved by the drawer of the cheque. Therefore mere fact that the payee&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dded here that there may be good reasons for not dishonouring a cheque merely because the ink of the signature and ink of the material particulars is different or that the handwriting is different. Numerous situations can be thought of where the handwriting and the ink can differ. For instance when an entire cheque is typed as to its material particulars, and the signature is in the handwriting of the drawer, such cheque can hardly be said to be void for that reason. 24. This Court is unable to accept the contention of the petitioner that if the signatures on the cheques are shown to be much prior to the date of filling up of the material particulars that would probabilise the defense of the Petitioner. That the signature on the cheques is that of the petitioner is not disputed. The Petitioner has even in his cross-examination in fact admitted the fact that the cheques were issued by him and were handed over to the complainant along with a covering letter. For the reasons explained it matters little if the name of the payee, date and amount are filled up at a subsequent point in time, subject of course to what is stated in the proviso to Section 118 NI Act. 25. It is also not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervations in para 12 of the said decision have Therefore to be understood in the above factual context. Since an essential ingredient of Section 138 is the signature of the drawer on the cheque, the trial court there could not have denied the accused the chance to prove that defense. The defense of denial of signatures naturally required the opinion of the handwriting expert. 26.2 In para 12 of Kalyani Baskar, after noticing the above facts, the Supreme Court held as under: 12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque itself, then this is a permissible defense within the scope of Section 138 NI Act. In fact an accused facing trial for this offence has a very limited range of defenses to adopt. One is to show that the signature on the cheque is not that of the accused. The other is to show that there is no outstanding towards payment of the debt. While the former can be proved through the evidence of an handwriting expert, the latter cannot possibly be proved in that manner. The decision in Kalyani Baskar is not of assistance to the petitioner. 26.4 An extensive reference was made to the judgment of this Court in BPDL Investments (Pvt.) Ltd. which arose in the context of a summary suit in which an application for leave to defense was being considered. It was submitted in that case that two undated cheques had been issued by the defendant in favor of the plaintiff and before it was presented the date was filled up by the plaintiff and that this constituted a material alteration. Following the decision of the Andhra Pradesh High Court in Allampati Subba Reddy v. Neelapareddi AIR1966AP267 , this Court held that there was no consent of the defendant to the alteration of the date and Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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