9911796707
TMI Blog1998 (4) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... nt did not respond to the notice. Hence the plaintiff instituted the suit. The defendant in his written statement stated that he had not borrowed ₹ 30,000 from the plaintiff. However, he admitted the issuance of the cheque. According to him, it was issued without consideration for adjustment of certain transactions in connection with toddy shops of Kottarakkara Range. 3. In order to establish his case, the plaintiff got himself examined as PW-1. The defendant got himself examined as DW-1. On the side of the plaintiff exhibits A-1 to A-3 were produced and the defendant produced exhibits B-l to B-6. 4. The dispute between the parties centres round exhibit A-l cheque dated June 11, 1985. Issuance of the cheque is admitted by both the parties. The defendant's case is that the plaintiff cannot claim relief on the basis of the said cheque, since he had made material alteration in the cheque. According to him, the plaintiff inserted the date on the cheque without obtaining his consent. Insertion of a date on the cheque, according to the defendant, would amount to material alteration within the meaning of Section 87 of the Negotiable Instruments Act. 5. The trial court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque. There is also no dispute regarding the signature, the amount and the name shown in the cheque. In other words, the defendant admits his signature, admits the name of the payee and admits the amount and also the issuance of the cheque. According to the defendant, what he issued was a blank cheque, and that it was not supported by any consideration. It is his further case that the same was issued as security for a loan transaction. 9. According to us, the burden is entirely on the defendant to show that the cheque was not supported by any consideration. Section 6 of the Act defines cheque as a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. A cheque is an instrument in writing containing an unconditional offer signed by the maker directing a specified banker to pay on demand a certain sum of money only to the payee or to the order of a certain person or drawer of the instrument. Section 118 of the Act lays down certain presumptions. Section 118 is extracted below for easy reference : 118. Presumptions as to negotiable instruments.--Until the contrary is proved, the following presumptions shall be made-- (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is as to whether the defendant has rebutted the presumption drawn under Section 118 of the Negotiable Instruments Act. In the instant case, the defendant has admitted issuance of the cheque. There is no dispute regarding the signature, amount or regarding the payee's name, etc. However, the defendant submits that the cheque was issued for final settlement of accounts between the plaintiff and the defendant in connection with toddy shops business of Kottarakkara Range. 12. In order to discharge the burden, the defendant has to adduce acceptable evidence. In the instant case, there is only the self-serving evidence of the defendant who got himself examined as D. W. 1. The defendant has relied on documents exhibits B-1 to B-6. Exhibit B-1 is an agreement between the plaintiff and the defendant with regard to the right to conduct arrack shop No. 10, in Group IV of Kottarakkara Range, which was given to the defendant under certain terms and conditions. The defendant also relied on exhibit B-4 dated March 51, 1984, with regard to an agreement in respect of toddy shop No. 10. We are of the view that merely because there were some transactions between the plaintiff and the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d so also the relationship of the parties. So also the alteration of signature as well as the amount. All this would amount to material alteration. 16. The general rule is that a material alteration renders the negotiable instrument void. However, if an alteration is made with the consent of the drawer of the cheque, it may not amount to material alteration, because the holder of the undated cheque has got the implied authority to put the date on the cheque. Once the date is shown on the cheque, the burden is on the drawer of the cheque to prove that the payee had no authority to do so. 17. There is no provision in the Act which makes a cheque or any of the negotiable instruments void, if it is not dated. However in England, under the Bill of Exchange Act, a bill of exchange is not valid on the reason that it is not dated. In India the position is different. In India the legal position is that an undated cheque may be invalid, but not void. Banks may also not bounce the cheque if it is not dated. There may be cases where the bank may honour the undated cheque, considering the standing of the parties and other surrounding circumstances. 18. When a cheque is issued for valid ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
