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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 ..... 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 dated 7th May, 2004 for a sum of Rs. 1 lakh each in respect of which Complaint Case No. 341 of 2004 was filed. The aggregate sum of all these cheques is Rs. 8 lakhs. The case of the complainant is that on different dates from 2000 to 2003 the Petitioner accused took a loan of Rs. 8 lakhs and issued the aforementioned cheques towards his liability for repayment of the loans. All the cheques were drawn on Punjab National Bank ('PNB'), Tolstoy House, New Delhi. Some of the cheques when presented returned dishonoured with the remarks "account closed" and some others on the ground "funds insufficient". Despite the complainant sending notices demanding payment, the Petitioner did not make payment within the statutory period. 3. At the trial after the complainant's evidence was recorded the petitioner examined himself as a defense witness and filed an affidavit by way of examination-in-chief. The stand taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 experts will falsify the entire case of the complainant filed to harass the deponent to extort money from him." The prayer in the application was that the cheques and letters in question should be sent to the CFSL "to seek scientific report and on insertion of name and address". 6. By an order dated 31st August 2006 the learned MM dismissed the application holding as under: Even if it is presumed that the name and date in the cheque was filed by the complainant himself even in that case also there is no need for sending the cheque in dispute to CFSL for expert opinion as the signature on the cheques is admitted by the applicant/accused and he has further admitted that these cheques were issued to the complainant in discharge of his liability. In view of the discussion made above, I am of the view that there is no need for sending the cheques in question to CFSL for expert opinion as no cogent and sufficient groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnational (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 Court in Kalyani Baskar v. M.S. Sampoornam (2007)2SCC258 to contend that every possible assistance should be offered by the court when an accused in a complaint case seeks directions to refer a disputed cheque for the opinion of a handwriting expert. It is submitted that in the said case the Supreme Court held that where a cheque was doubted as to its authenticity, the trial court ought not to refuse the request of the accused sending it for the opinion of the expert. 11. Ms. Amrit Kaur Oberoi, learned Counsel appearing for the Respondent No. 2 points out that these proceedings are an attempt to somehow delay the matter after the entire evidence has been recorded by the trial court. She further points out that the accused himself has been examined and in his reply he admitted that he has issued the cheques in favor of the Respondents and also sent the covering letters enclosing the cheques in question. She further points out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 certain person or to the bearer of the instrument." The expression 'negotiable instrument' has been defined in Section 13 NI Act as meaning a "promissory note, bill of exchange or cheque payable either to order or to bearer." 15. What appears to be clear from the above definitions that an essential feature of a cheque is that it has to be signed by the maker. This signing of the cheque need not be by hand alone. After the amendment to Section 6 in 2002, the NI Act acknowledges that there can be an electronic cheque which can be "generated, written and signed in a secure system." Nevertheless, the signing of the cheque is indeed an essential feature. But what about the other material particulars? Can the word "cheque" occurring in Section 138 NI Act include a blank cheque which is signed by the drawer but the material particulars of which are left unfilled at the time it was handed over to the payee? While on the one hand Section 138 NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it clear that by doing that the holder does not thereby incurred the responsibility of an endorser." Likewise Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment. These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the cheque was tampered with or forged or there is material alteration or that the handwriting by which the payee's name and the amount was written was differed. The Bank was willing to honour the cheques if sufficient funds were there in the account of the drawer even if the payee's name and the amount was written by somebody else other than the holder of the account or the drawer of the cheque. The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque. No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument. Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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's name and the amount shown in the cheque Is not in the handwriting of the drawer of the cheque that by itself is not a ground to contend that they are not validly issued or the cheques were not executed at all. 22. Earlier in K.C. Devassia, St. Joseph's Chity Fund, Kaithavana v. Subramanian Potti II (1996) CCR 106 a learned Single Judge of the Kerala High Court came to the same conclusion by observing in para 5 as under: The revision is filed against the order dismissing the application filed by the accused for sending the disputed cheque to a Hand Writing Expert and obtain his report. The contention raised by the revision petitioner before me is that a blank cheque was handed over to the complainant as security for the transaction between the two and the cheque was subsequently filled up by the complainant. Counsel adds that filling up of the cheques by the complainant will amount to a material alteration coming within the purview of Section 87 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Rs. 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. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" included fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defense is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the court should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 CrPC without naming any person as witness or anything to be summoned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing 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 in terms of Section 87 of the NI Act it was a material alteration. In the first place, this was not a case arising under Section 138 NI Act at all. Moreover, while adverting to Section 87 of the Act, the Court did not notice that the said Section was subject to Sections 20, 49, 86 and 125 NI Act. These provisions permit the holder in due course of a negotiable instrument to fill up the material particulars without the said instrument being rendered void. Section 87 contemplates an otherwise complete cheque which when presented for payment would be able to be honoured except for the material alteration. For instance there is an overwriting or cutting in the material particulars which has not been initialed by the drawer, then that would prevent the bank from passing the cheque for clearance. Therefore, this decision is also not of relevance to the facts on hand. 27. For all the aforementioned reasons, this Court finds no infirmity in the order of the learned MM declining t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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