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Specimen obtaining

Page no : 2

R Trivedi (advocate.dma@gmail.com)     28 January 2013

Who is denying this ??

 

Pl understand the position of law as below...

 

1. S.87 is for alteration on Instrument: It states that if an alteration is not apparent, the cheque is valid. So a cheque with muliple handwriting is a valid cheque. There is no dispute.

 

2. S.20 talks of incomplete Instruments... It states that the holder has the prima facie authority to fill up the blanks, that means a cheque which has multiple handwriting can only suggest that it is not written by drawer but by some one else but still it is valid. For example a drawer can ask his accountant and secratary both to fill up the cheques partially and then sign it, he cannot just say that he did not fill it up and escape the law in case of dishonor.

 

But the point which is being raised is as follows:

 

--- Can the possessor of cheque claim that under S.20 he has the right to fill up any amount, even if it is proved that it was filled up by him and he had no consent to do so.

 

"NO HE CANNOT" 

 

The remedy:

 

Many a cases are pending wherein Blank Cheques were issued, if the drawer can prove that the cheque was blank at the time of delivery and amount was filled up by holder without explicit consent from the drawer then that is the valid defense on the part of accused. But if drawer fails to prove that the cheque on delivery was blank, then he cannot take a plea that it had a different handwriting and could not have been filled up him. the point is S.20 will not rescue holder if drawer can prove that the cheque was blank. 

 

Now how to prove that the cheque was blank : It is case specific but one can attempt as follows:

For non PDC cheques

1. Proof of delivery date.

2. Outstanding on the day of delivery not matching with cheque amount

3. part hand writing from the complainant side.

4. Counterfoil of the cheque book or other cheques in the series.

5. Any letter issued to holder along with cheque, stating that the cheque is blank for security purpose or so.

 

The most closest argument as given in this case is by Andhra High Court, which stated that if the blank security cheque is issued, then it must have been issued as conditional. And the holder cannot fill it up without that condition getting fulfilled (or violated by drawer). If the complainant can show that the blank cheque was issued, that after reconciliation the liability is assessed and filled up with due intimation to drawer, then accused cannot be saved.

 

Holder cannot act as a king, wow I have a blank cheque and law has given me authority to fill up anything.

 

 

Anyone has any issue regarding Blank cheque or security cheque please let me know, I will try to give proper citations.

ganeshram gupta (prop)     28 January 2013

shri trivedi ji

    thanks for clarification. i would like to add one thing --that has disappeared --sec 46  delivery of instrument. the complaintant was aware with my notice served before the lodgement of case  that

1] you have picked the cheque from from former with the collusion

2] you are warned not to misuse that.

    i have evidence in tape ,writing and oral evidence to prove the collusion in writing the date, amount,and name

there is no citing case of sec 46  delivery of instrument. if u have any such pl provide.thanks

R Trivedi (advocate.dma@gmail.com)     28 January 2013

Delivery is also very good point, there are conviction by trial courts due to improper defense from the accused side..

 

Delivery of Cheque S.46 states:

1. Drawing of cheque is deemed to be completed by delivery.

2. Cheque can be delivered conditional or otherwise, which can be shown by drawer.

 

S.138 states;

1. No court shall take cognizance if the cheque drawn is prior to 6 months.

 

Courts cases:

Cheque was issued in 1997 and case filed in 2012 ???? Or even in 2012 march and dishonor in 2012 Nov. This is certainly not as per law, court must convince itself at the time of cognizance this part is not violated.

 

Pl share if any lawyer raised this issue that court cannot take cognizance if the cheque was delivered 6 months before the date of dishonor (even if cheque is valid).. (Only for PDC that too if it is stated in complaint that it was PDC at the time of delivery, this argument is void).

 

The date of drawn of a non PDC cheque is the date of delivery, if it is 6 months prior to date of dishonor and there is no subsequent consent from drawer, courts cannot take cognizance, if they do then this issue must be agitated by defense at the very beginning itself. Moreover a blank cheque leaf is not a cheque at all under S.5/6 of NI Act.

 

Mr Gupta: You do not need any citation for what is written in the section in simple English.

 

(Amost all the criminal cases under S.138 by money lenders who take blank cheques in advance are................., if dishonered after 6 months of receipt of cheque and without subsequent consent). If accused looses the cases he must agitate till Supreme Court. Sooner or later Supreme Court will throw out these cases in single stroke.

abhay aman (abhaykumaraman@gmail.com)     01 February 2013

sir i have also same problm ...

plz read it ....and rply me plz..

 

hi ! sir ,

I m 28 year old .one of my x-friend put a case on me of section 138 .of rs 9 lac. two year year back i was give him 2 blank cheques  of my seving acount .due to payment the pending bill of (phone of office ) we both r invlove in that office.i m invlove in share trading work in that some loass was happen of that frnd and me also. and he want to money from me which was loss.same bank account was close d 6 month ago from that day when he deposit the that chk .I have that phone recording by which he accept , i was given him a blank cheques .and dis phone recording also 6 months ago.and after deposit the cheques  i called  him and ask how u can do that than he told me "according to me my amount approx 6-7 lac and including intret it my be about 9 lac so i do dis. and same talk i recorded.

So my question is if i m puting the true here .than wahat happen of my case.if i put all recording which done on phone.and all

plz ans me..I will very thankful to u all ..  

abhay aman (abhaykumaraman@gmail.com)     01 February 2013

 

i have also same problm..

hi ! sir ,

I m 28 year old .one of my x-friend put a case on me of section 138 .of rs 9 lac. two year year back i was give him 2 blank cheques  of my seving acount .due to payment the pending bill of (phone of office ) we both r invlove in that office.i m invlove in share trading work in that some loass was happen of that frnd and me also. and he want to money from me which was loss.same bank account was close d 6 month ago from that day when he deposit the that chk .I have that phone recording by which he accept , i was given him a blank cheques .and dis phone recording also 6 months ago.and after deposit the cheques  i called  him and ask how u can do that than he told me "according to me my amount approx 6-7 lac and including intrest it my be about 9 lac so i do dis". and same talk i recorded.

So my question is if i m puting the true here .than wahat happen of my case.if i put all recording which done on phone.and all

plz ans me..I will very thankful to u all ..  

ganeshram gupta (prop)     01 February 2013

pl wait some time.the complaintant would frame another story ,not like u.thereafter , you should prepare.

abhay aman (abhaykumaraman@gmail.com)     01 February 2013

ok but plz respond me too....plz 

 

hi ! sir ,
one of my x-friend put a case on me of section 138 .of rs 9 lac. two  year back i was give him 2 blank cheques  of my saving account .due to payment the pending bill of (phone of office ) we both r involve in that office.i m involve in share trading work in that some loss was happen of that friend and me also. and he want to money from me which was loss.same bank account was close d 6 month ago from that day when he deposit the that cheque
 .I have that phone recording by which he accept , i was given him a blank cheques .and dis phone recording also 6 months ago.and after deposit the cheques  i called  him and ask how u can do that than he told me "according to me my amount approx 6-7 lac and including intrest it my be about 9 lac so i do disand same talk i recorded.
So my question is if i m puting the true here .than what happen of my case.if i put all recording which done on phone.and all
plz ans me..I will very thankful to u. 

DAULAT DILBAUG (Problems related to money marriage matters.-dostnaye@gmail.com)     01 February 2013

For cheque bounce special provisions of section 138 are applicable that is-

1) The accused has given cheque from its account and it is bounced  and payment not made after reciept of notice so the  liability is presumed.

 

2) Once signature is proved that of accused than as per recent Judgement of SC any other change  such as stop payment, signature deff , ac closed etc etc goes against the accused.

 

So the defense that cheque was given blank or it was misused can not be proved since other than the word of the accused there can not be any other reliable evidence.

 

HOWEVER THE ACCUSED HAS  SOME  REMEDIES AND WHICH ARE  MOST IMPORTANT FOR COMING OUT OF ANY CHEQUE BOUNCE CASE IS EXISTANCE OF LEGAL LIABILITY.AND ISSUE OF PROPER LEGAL NOTICE

.

 

IF THE ACCUSED CAN PROVE BY CLEVER CROSS EXAMINATION THAT -

ONE- THERE WAS NO PROPER NOTICE AND

TWO-THERE WAS NO LEGAL LIABILITY.

Than only the accused can come out of any cheque bounce case.

R Trivedi (advocate.dma@gmail.com)     03 February 2013

There can be positive as well as circumstantial evidence that the cheque when issued was blank.


As far as liability is concerned there are two major aspects:

 

Aspect 1: The nature of liability  as alleged by complainant

 

Now the accused can even prove that although liability with respect to amount is existing but it was not for that particular transaction... then the case ends in favor of accused. For an indicative example, say the cheque was issued for office rent, then it cannot be claimed against Electricity bill..

 

 

Aspect 2: Amount

 

For a mercantile transaction, the complainant has to invariably submit the account statement, as per evidence act each and evry transaction of the account statement must be proved by the prosecution. Now if defense denies any of the transaction with some probable counter evidence then this section of evidence act comes to the rescue of accused and S.139 gets rebutted, in a sense complainant has to prove the guilt beyond reasonable doubt.

 

Please remember S.139 has only evidentiary value, magistrates are convicting accused, thinking that cheque bounce is the gospel truth, this is not as per law. defense must fight properly. but also dishonest people need to be punished.

ganeshram gupta (prop)     05 February 2013

sir

  following rule should not be ignored, if complaintant has obtained cheque mischievouly.

 

The Negotiable Instruments Act, 1881

 

46.Delivery.-

 

The making, acceptance or endorsement of a promissory note, bill of exchange or cheque is completed by delivery, actual or constructive.

 

As between parties standing in immediate relation; delivery to be effectual must be made by the party making accepting or indorsing the instrument, or by a person authorised by him in that behalf.

 

As between such parties and any holder of the instrument other than a holder in due course, it may be shown that the instrument was delivered conditionally or for a special purposes only, and not for the purpose of transferring absolutely the property therein.

 

A promissory note, bill of exchange or cheque payable to bearer is negotiable by the deliver thereof.

R Trivedi (advocate.dma@gmail.com)     05 February 2013

This is the crux, and all blank cheque or security cheque cases must become dud if the delivery is more than 6 months old.. But unfortunately trial courts do not follow the law.

 

1. Making is completed by delivery that is drawing is completed by delivery.

2. A blank cheque is not a cheque when delivered as per S.6 of NI Act.

3. So drawer just gave a blank leaf, not cheque, not even a bill of exchange (A PDC is a bill of exchange till the date mentioned on it and then it becomes a cheque)

4. A blank cheque leaf cannot be a security in legal terms, it has no instrinsic value like fixed assets, so if complainant has taken the blank cheque as security then he is to blame not the drawer.

 

The point is:

 

S.138 clearly states that no court shall take cognizance if the cheque is drawn 6 months before the date of dishonor. Now what is the date of Drawn ? S.118 gives a rebuttable presumption that the date mentioned on a cheque shall be treated as date of drawn till contrary is proved. so if the drawer issues a blank leaf (with amount column atleast blank) and possessor fails to show that he had consent to fill up the blanks, then conviction is illegal. Moreover delivery of blank cheque invariably suggests conditionality imposed on the cheque, there is certainly no guilty mind at the time of delivery (no mens rea). So even the proceedings for such cases are illegal, but it is happening.

 

In such cases the date of drawn can be considered as:

 

1. The date as filled up by complainant along with the amount.

2. The date on which cheque leaf was delivered.

 

Now if (2) is taken as date of drawn , then S.138 is not applicable and if (1) is taken as date of drawn, then possessor had no authority or consent to fill up the cheque and hence cheque is not executed by the drawer. Whichever way it is taken S.138 is not applicable. There is an argument that S.20 of NI Act (Inchoate Stamped Instrument) is applicable on cheques, this is incorrect since

 

a. The cheque is not stamped instrument.

b. Limiting Amount cannot be ascretained on the blank cheque which can be ascertained for stamped instruments, this is the fundamental aspect of S.20.

c. decree of higher amount then due is also criminal offense, so there always will be doubt that if the cheque amount is filled up by possessor it can be more than what is due. This probablises the case.

 

So at the best holder must prove that whatever amount he has filled up is the legal liability, once the question of holder proving the legal liability comes, it becomes a civil case, not the criminal case. Even in criminal case under S.138, once as the case goes to prosecution side for proof of liability, the presumption under S.139 gets rebutted and now the complainant has to prove the case beyond reasonable doubt, which is almost impossible.

 

The intention of legislature as highlighted by honble Apex Court is to Punish those drawers who issue the cheuqe in order to clear the subsisting liability (liability on the date of delivery) knowing fully well that they do not have the money in the account, this is cheating, suggesting applicability of Mens Rea (presence of guilty mind) in S.138 also. Blank cheque or security cheques cannot fall under this. Infact Apex Court has clearly ruled that Security cheques do not come under the ambit of S.138.

 

To summarise: Wherever drawer had issued cheque years back (or even beyond six months from the date of dishonor), they must take up this defense also, Many a times complainant also mentions in the complaint that the cheque was received much before the date of presentation as blank, this admission also must be used as defense under S.46 and non applicability of S.138 for 6 months older cheques.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     06 February 2013

 But unfortunately trial courts do not follow the law.


This statement and such regular statements  against courts are open contempf of administraion of justice.

R Trivedi (advocate.dma@gmail.com)     06 February 2013

No this is not, this is the expression with due respect to our judiciary.

 

1. Many a times honorabel high Court has quashed the proceedings under S.482 for non application of mind by the trial court while taking cognizance, clearly suggesting non following of law as mandated under various section of CrPC.

 

2. Especially in case of S.138, courts routinely take the cognizance without asceratining the appicability and put the drawer to unnecessary criminal litagation which is against the fundamental right of liberty of accused. The reason could be over burdened trial court which is immaterial.

 

3. Courts under S.138 do not follow the procedure laid down as summary case, they adopt the normal summon proceedings without passing any order as manadated by statue, this is also against the law. The honorabel High Court of Delhi had quashed such proceedings and sent back the file to trial court for following of proper procedure.

 

 

Let us understand the difference between contempt and expression of irregularity.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com)     06 February 2013

Please give specific case of HIGH COURT referred by you, otherwise you are routinely finding faults even in High court and Supreme court cases thus underming the repute of the Juditiary.

R Trivedi (advocate.dma@gmail.com)     06 February 2013

Laxminarain:

Pl be kind enough to retract your statement once you go through below order.

 

Rajesh Agarwal vs State & Anr 28 July, 2010

 

Pl read the full order and read the below paras also, probably you will say that below line  (para 10) by the honorabel High Court of Delhi (Honorable Justice Dhingra) is also open contempt of trial court  (I am joking...)

10. The procedure now being adopted by the MMs is totally contrary to the provisions of Code of Criminal Procedure and Negotiable Instrument Act.

 

15. .......... Unless the court, for reasons to be given, considers that the punishment in a case should be more than one year, the court cannot deviate from the procedure of summary trial and cannot ask the accused to appear again and again and defeat the very purpose of summary trial........

 

The above order is very handy for accused. Incidentally written by justice Shivnarain not by Laxminarain


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