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TMI Blog2003 (7) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... hibit P10 notice was issued on October 3, 1997. The accused received the said notice on October 7, 1997. Exhibit P12 is the postal acknowledgment. The appellant invoked the provisions of Section 138 of the Act by presenting the complaint for dishonouring of cheque and it was taken on file. The accused pleaded not guilty. Thereupon, the trial was conducted. The appellant alone was examined as PW1 and the dishonoured cheque was exhibit P7. Exhibit P8 is the cheque return memo dated September 25, 1997. Exhibit P9 is the cheque return intimation dated September 26, 1997. Exhibit P10 is the office copy of the notice. Exhibit P1 is the certificate of incorporation. Exhibit P2 is the certificate extract of the minutes of board of directors dated November 5, 1997. Exhibits P3 and P5 are the delivery challan invoices. Exhibit P4 is the copy of consignment note. The learned Metropolitan Magistrate recorded a finding of not guilty and acquitted the accused. Thereupon, the appellant preferred this criminal appeal. 3. This appeal is presented against the acquittal order. This court can interfere only when it is shown that the judgment is perverse and there is no proper appraisal of the evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lank cheque issued can be called as a cheque within the meaning of Section 6 of the Act. A cheque is defined under Section 6 of the Negotiable Instruments Act as under : A 'cheque' is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. 5. As per Section 5 of the Negotiable Instruments Act, a bill of exchange is 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. It is clear that a bill of exchange should contain in writing directing a certain person to pay a certain sum of money to the order of a certain person or to the bearer of the instrument. If a blank cheque is drawn and handed over to the party, will it come under the definition of Section 5 of the Act ? Issuing of post-dated cheque and cheques without putting the dates is different. If the cheque is not drawn for a specified amount, it does not fall under the definition of bill of exchange. It cannot be called a cheque within the meaning of Sections 5 and 6 of the Act. Section 138 contemplate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the actual amount payable, does it constitute a cheque within the meaning of Sections 5 and 6 of the Act ? I have already stated a bill of exchange contemplates mentioning of certain amount as payable. The cheque is a kind of bill of exchange, which means the amount payable must be mentioned in the cheque. At the time of issuing the cheque, the amount payable under the cheque is not mentioned. Consent is not given for which the amount was being drawn. It was virtually amounted to alteration of the cheque, which is not permissible. The letters do not make a specific mention that they can put the amount therein and they can draw. The act of the complainant in filling up the amount portion in words and figures and putting the date as per his own choice is certainly a material alteration. A blank cheque cannot be enforced even though it is issued for legal liability. It is stated in P. Srinivasulu v. Nagaral Eraiah Shetty alias N. Chinna Eranna Setty and Sons [1994] 2 An WR 225 that a presumption under Section 138 of the Act can be drawn in case where issuance of blank cheque which is not denied by the accused even though it was asserted by him that it was not issued with any dishon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Comp Cas 471 (AP) held in para. 10 as follows (page 476) : Section 138 of the Act is introduced with a view to avoid the malignant trade practice of indiscriminately issuing cheques without sufficient funds. The amendment is introduced with a view to curb instances of issuing such cheques indiscriminately. So, having regard to the purpose with which this provision is introduced, it is doubtful whether a case of this nature can be construed as attracting the provisions of Section 138 of the Act. In the instant case, the appellant advanced some money to the respondents and obtained a pronote. It was stipulated that the respondents should pay interest every month. At the same time the appellant-creditor took a blank signed cheque from the respondents with the understanding that the complainant could fill the other columns in the cheque and present it if the respondents committed default in payment of interest. The respondents paid interest for about eight months and, thereafter, stopped payment of interest. Then the appellant put the date on January 15, 1991, wrote his own name in the space intended for the payee and also mentioned the amount as Rs. 1,18,337 and presented the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque and the same is filled up and presented to the bank, it cannot be said that the accused has committed an offence. No doubt, morally the accused is not justified in issuing the cheque, when he is not having sufficient funds in the bank. But, the legality has to be judged in this case. The person who accepts the blank cheque certainly has to take it along with the risks to be faced under law. It is not open to him to complain subsequently when the amount has not been realised, etc. I am of considered view that the cheque issued without mentioning the amount for which it is drawn is not a cheque at all. It is not a bill of exchange at all as it is not drawn for a certain amount. When such is the thing, the question of invoking Section 138 of the Act does not arise. May be there is lacuna in Section 138 of the Act. It cannot be said that it covers invalid cheques also. Such an interpretation cannot be put on to it. It is for the Legislature to look at the lacuna found. The lower court has elaborately discussed and ultimately come to the conclusion that the complainant failed to establish the relevant ingredients that are to be established under Section 138 of the Act. The relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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