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TMI Blog2019 (8) TMI 1872X X X X Extracts X X X X X X X X Extracts X X X X ..... as so big. He would be treated to be in possession of the said cheque soon after the same was issued to him and when he came in possession of the same, if any alteration in the said cheque happened, the burden would lie only on him to explain as to under what circumstances the said cutting took place but in counter affidavit, no such disclosure has been made, which renders the impugned cheque to be a void instrument in the light of Section 87 of the Act. The view is fully agreed upon that whether or not cheque was issued for discharging a debt or liability can be seen at the time of trial and not in proceeding before this Court under Section 482 Cr.P.C. but the question remains in the present case that the impugned cheque itself appears to be void on account of there being cutting, which renders the said cheque to be void under the provisions of Section 87 of the N.I. Act, and hence, the subsequent proceedings in opinion of this Court would not serve any purpose, hence in view of this peculiar situation in this case, it is considered appropriate to quash the impugned order. The impugned order dated is quashed. - Dinesh Kumar Singh-I, J. For the Appellant : U.K. Saxen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice that if cheque amount was not paid within fifteen days, the opposite party no. 2 would be at liberty to file case in competent court. Due to non-payment of the said amount within the prescribed time, the present complaint has been moved. 4. From the side of the accused-applicant, it has been stated in the affidavit that the person, who had filled the cheque, wanted to write 36,000/- and had written the word Thous and, thereafter, made a cutting over the said word and wrote Lacs , which rendered the said cheque void as the same cannot be encashed in view of the directions issued by the Reserved Bank of India in Circular dated 6.10.2010, copy of which is annexed as annexure 3. 5. Clause 9 of the said Circular provides that no changes/corrections should be carried out on cheque (other than for date validation purposes, if required). For any cheque in the payees' name, courtesy amount (amount in figure) and legal amount (amount in words), fresh cheque form should be used by the customers. This would help banks to identify and control fraudulent transactions . It is further mentioned that applicant is a house wife, who has nothing to do with the affairs of the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utting made in the amount was not permissible under law and that cutting also does not bear any signature. The said cheque is alleged to have been issued by the applicant in the capacity of owner of crusher, which is run in the name and style Gangotri Granite, while in fact the said Company is Private Ltd. Company being registered under the provisions of Companies Act, which is having its two Directors, namely Dinesh Chandra Singhal and Vikas Agarwal. The applicant is neither an employee of the same nor has any concern with the said Company. The trial court has neither appreciated that applicant had no legally enforceable liability to pay the amount of cheque, hence the said proceedings of the complaint needs to be quashed. 6. Denying the pleas of applicant, from the side of opposite party no. 2, it has been stated by filing counter affidavit that the applicant has not come with clean hands before this Court as earlier a criminal revision was filed by him which was dismissed after certain arguments. The R.B.I. had clarified vide communication dated 22.6.2010 that prohibition of alteration/correction in cheques will be applicable only for cheques cleared under the image-based Che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes, if required). For any cheque in the payee's name, courtesy amount (amount in figure) and legal amount (amount in words), fresh cheque form should be used by customers. This would help banks to identify and control fraudulent transactions. 9. In rebuttal of this argument, learned counsel for the opposite party no. 2 has drawn attention to the paragraph 10 of the same guidelines in which Sub-clause 10 (iii)(iv) stipulates as follows:- (iii) Will be applicable only for cheques cleared under the image-based Cheque Truncation System (CTS). Collecting banks should ensure, ab-initio, that such cheques are not accepted for presentment in CTS. (iv) Is not applicable to cheques cleared under other clearing arrangements such as MICR clearing, non-MICR clearing, over the counter collection (for cash payment) or direct collection of cheques outside the Clearing House arrangement. 10. In Central Bank of India (supra), the Hon'ble Apex Court has held that R.B.I. Circulars have statutory force and it is on this interpretation that the learned counsel for the applicant has relied upon that this would make the guidelines mentioned above to be binding and any violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2 should have objected to taking the said cheque at the very outset, more so, in condition when the amount in question was huge. 13. Attention may also be drawn to Section 87 of the N.I. Act which provides as under:- 87. Effect of material alteration.--Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration by indorsee.--And any such alteration, if made by an endorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of sections 20, 49, 86 and 125. 14. In view of above provision, I find that this would fall in the category of material alteration of the impugned cheque. 15. Learned counsel for the applicant has relied upon Fragrant Leasing Finance Company Ltd. Anr. Vs. Jagdish Katuriya Anr., 2007 CRI. L.J. 3880. In this case, accused took loan of Rs. 11,00,000/- from complainant no. 1 and in order to repay the loan, issued two cheques of Rs. 6,00,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tri Granite Private Ltd., Firm of opposite party no. 2, with respect to articles sold, are not valid bills. Moreover in second supplementary affidavit, it is mentioned that the two bills of amount of Rs. 3,18,630/- and of Rs. 31,88,950/- respectively, were not annexed with the compliant and to substantiate the same, a questionnaire issued by the District Court, Jhansi, has been annexed with the said second supplementary affidavit at page 8, in which it is mentioned that photo copy of the bill of Rs. 3,18,630/- was presented and no bill of amount of Rs. 33,59,398/- was presented and it was argued that there was no legal debt due against the accused-applicant from the side of opposite party no. 2 regarding which cheque could have been issued in favour of opposite party no. 2. 18. It has been rebutted by the learned counsel for the opposite party no. 2 stating that it was clearly mentioned in the complaint filed from his side that two cheques, one of amount of Rs. 31,88,950/- and the other of Rs. 3,18,630/-, total amount of Rs. 36,67,028/- were issued and in discharge of the legal dues, the impugned cheque of Rs. 36,67,028/- was issued, which got dishonoured, photo copy of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roving that the said cheque was not issued for the debt or liability the conviction as awarded by the Magistrate was correct and the High Court has erroneously set-aside that conviction. 23. The other case that has been relied upon by the learned counsel for the opposite party no. 2 in MMTC Ltd. And another Vs. Medchl Chemicals and Pharma (P) Ltd. and another, (2002) 1 SCC 234. In this case, it is held that a complaint can be filed in the name and on behalf of the Company by its employee without necessary authorization. Such a complaint is maintainable. Want of authorization can be rectified even at subsequent stage. It was further held in this case that the interference by the High Court in exercise of its inherent powers cannot be made while complaint is pending before the trial court and at this stage the High Court could not examine the merits of the complaint merely because the complaint did not contain specific allegation to the contrary and hold that the cheques were not issued for any debt or existing liability. The onus to prove non existence of a debt or liability lay on the drawer and had to be discharged at the trial. 24. In M.M.T.C. Ltd. And another (supra) the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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