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ashok kumar (Social Worker)     21 November 2014

Nia case law required : air (noc) 1082 (bom)

NIA Case Law Required : AIR (NOC) 1082 (Bom)

Shall be obliged to have the above case Law AIR (NOC) 1082 (Bom) wherein the Bombay High Court held that filling of the Cheque by complainant is not a material Alteration once signature of the drawer were admitted. Would be grateful, if the learned members can help with some other similar case laws. 



 5 Replies

R Trivedi (advocate.dma@gmail.com)     23 November 2014

Will attempt to get this and put the same if found..

 

But the point which you are referring to is about Blank Cheque......There are two possibilities.

 

1. Complaint does not state that it was blank and even denies during cross examination.

2. Complainant states in his complaint that it was Blank cheque and he filled it up.

 

If it is as per Sr # 1 above, then accused has to prove that the cheque was Blank when handed over. Mere different handwritings will not be sufficient to prove this point. If accused proves that it was Blank then he is squarely out of trouble.

 

If it is as per Sr#2, then complainant has to prove that he had consent to fill up the cheque and he has to positively demonstrate the liability amount.

 

As far as NI act and Bank is concern, material alteration has to be visible (like striking off etc), so filling up of cheque in multiple handwritings with multiple inks will not invalidate the same, thats the position of law.

 

The problem comes because of S.20 of the NI Act, but please note that it is applicable only for Stamped Instruments and the cheque is not a stamped instrument, this section is not applicable on cheques, but  courts goof up sometimes, as HON SC has not set forth any order on this. The opinion among various HC is mixed. In the trial courts it is illegally and loosely heard that once the Blank cheque is given the possessor has the prima facie authority to fill up the same...which is nothing but BullShit.

 

 

 

 

 

 

 

 

R Trivedi (advocate.dma@gmail.com)     23 November 2014

In fact this admitted signature theory itself is bad...

 

The execution of document is not the proof of signature, the content of the document also must be with the consent or by the signatory. So execution of cheque, which is mandatory to get presumption under S.139, is not the admission of signature alone.

 

Honestly speaking courts, including Hon SC, have gone mad with this S.138, it is so miserably executed and being executed by the courts in India, that it puts a big question mark if the judiciary has at all understood this law properly or not. 

 

1. S.5 and S.6 is violated.

2. S.20 is not rightly taken up.

3. S.46 and S.138(a) is violated.

4. S.8 is not at all understood,

4. S.139 is not at all understood.

5. S.43 / S.44 is violated.

 

Cheque : Must have certain amount at the time of delivery.

Holder : is not the possessor, much more than that.

date of Drawn : Is not the date on cheque, it is the date when cheque was delivered.

 

Hon Apex Court came with an order stating that a PDC is a Bill of Exchange till the date it bears and the date of drawn shall be taken as date on the cheque...which is factually incorrect representation of cheque under S.68 of The Indian Stamp Act and also under S.118 presumption about date  which is rebuttable. The Hon Apex Court ignored S.46 of NI Act and S.68 of The Indian Stamp Act, if all these three sections S.138(a), S.46, S.118 of NI Act and S.68 of The Indian Stamp Acts are read together, the illegality of PDC beyond six months / Blank cheque will be very clear. 

 

[In case of Bill of Exchange (non cheque type) the promise to pay can be at a later date, but that does not change the date of drawn.]

 

 

 

 

 

Sanjeev Kuchhal (Publishers)     29 November 2014

1) Dishonour of cheque _ Material alterations _ Signature on the cheque not disputed but the accused having grievance about handwriting of the cheque and had requested the trial Court to send the cheque to the handwriting expert _ Held that vide Section 20 of N.I. Act when the drawer of a cheque issue blank cheque to other person he gives an authority to said concern person to fill up its contents. (See 2011 (9) LJSOFT 4)

2) Dishonour of cheque _ Blank cheque _ When a person hands over a blank cheque, it must be assumed that such person gives implied authority to the person the cheque is given to fill up the relevant details _ Entries made under such authority cannot amount to material alterations _ Burden is entirely on the drawer of the cheque to establish that the payee had no authority to put the date and amount and then encash the cheque. (See 2007 (2) LJSOFT 57)

For full text visit www.ljsoft.co.in (FREE to register Free to use)

R Trivedi (advocate.dma@gmail.com)     29 November 2014

S.20 has following riders and law fully cheques are out of its purview....

 

1. The Blank instrument must be Stamped Instrument...... Cheque is not a stamped Instrument.

 

2. There has to be defined upper limit from the value of the stamp...not possible in case of cheque.

 

3. The possessor of the Stamped Instrument Cannot claim more than what is due...so due amount must be proved by the complainant, if disputed.

 

4. It is a prima facie authority, not conclusive authority.

 

5. If complainant does not come forward with a story that he received the blank cheque and after assessment he filled up the amount.....then if the cheque is proved as blank, complainant cannot show S.20 to the court.. Rather he should be shown S.340 CrPC for perjury.

 

If any courts on its own says, that any amount can be filled up by possessor of the blank cheque and drawer has to disprove the same, then I am sorry to say.........

 

It is well established that complainant must prove the liability reasonably, he cannot withhold any crucial evidence expecting accused to disprove in air...

 

 

R Trivedi (advocate.dma@gmail.com)     29 November 2014

---------Burden is entirely on the drawer of the cheque to establish that the payee had no authority to put the date and amount and then encash the cheque.------

 

Can any one come forward and explain the above statement. How the drawer can establish that payee had no authority to put the date and amount.......????

 

See the Fun below...

 

1. In cases under S.376 it is the presumption that the accused had no consent if stated so by complainant..

 

2. In the S.138/S.20 It is the presumption that accused gave the consent, even if he disputes.

 

The Hon courts even upto the level of SC, has come up with great explanation in favor of complainant and totally complexed the definition of consent against accused and in favor of complainant, but in blank cheque case...it is simply against accused that he gave the consent.

 

This is bad and courts are primarily driven by the fact that a dishonored cheque = drawer is guilty.

 

I came across one order of Delhi High Court, it states that complainant does not have to do anything. Mere statement that there is so on so liability and proof of dishonor of cheque..Thats it. I most respectfully differ with such casual pronouncement at such a high level. Please note as per the law Liability will have to be established by the complainant with cogent evidence to secure conviction, any other interpretation of S.138/139 is faulty and illegal.

 

 

 

 

 

 

 

 


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