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Sagnik (Management Trainee)     12 November 2012

Undated cheques

Dear all,

Can an undated cheque be filled up by a drawee who is in possession of the cheque without seeking the pemission of the drawer of that undated cheque ? Is there any provision of whereby before filling up the date on the cheque the drawee has to seek the drawers permission ????

Regards,

Sagnik Sanyal



 15 Replies

Advocate Rohit (Advocate)     12 November 2012

the drawer must have given blank cheque as a security to the drawee. There, drawee has to fill in the amount which the drawer is liable to pay and the same has been admitted by the drawer. otherwise, the drawer needs to prove that the amount so filled in the cheque is worng and the drawee had done breach of trust.

if the drawer feels that the drawee is going to misuse the cheque then the drawer needs to give stop payment instruction to the bank.

 

simultaneously, drawer nees to communicate the same officially to the drawee of the cheque asking to reurn the blank cheques and the same shall be replaced by the cheque duly filled by the drawer.

 

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com)     12 November 2012

The matter will be relevant when the matter goes to court.

 

There are various judgements of higher courts in this matter., people try to fit these citations in every case and miserably fail.

 

Why because it the defense advocate who builds the case by skilfully planning cross and contradicting the evidence of the complainant.

Sagnik (Management Trainee)     14 November 2012

Dear All,

Thank You for your answers. I will like u answer a particular question for me. CAN A DRAWEE FILL UP THE DATE OF AN UNDATED CHEQUE WITHOUT TAKING THE DRAWER'S PERMISSION ????? In a case I am trying to take the contention that before filling up the date in an undated cheque the drawee did not take the drawer's permission. Will this contention be valid ???

Regards,

Sagnik Sanyal

MARU ADVOCATE (simple solutions for criminal legal problems -- yourpunch@gmail.com)     14 November 2012

Many things work and look good in theory only and defficult to use them in practice.

Once the cheque is signed by the drawer it is implied that the authority it given to the holder to fill it up.

However an expert defense advocate even is such situation can turn the table by efficient cross.

How and in what manner it has to be achieved will deffer from case to case.

The drawback of the cheque law is that once the cross is over the courts speeds up the case and very limited time is available for defense to act.

 

CHEQUE BOUNCE (Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com)     14 November 2012

You have to prove that the cheque was undated by soiid evidence only your statement will not be sufficient.

Surendra Gupta (Banker)     14 November 2012

The drawee has all the right to fill up the date on undated cheue without seeking anybody's permission and present the same for payment. It does not matter wthether the handwriting is obviously diffrent

CHEQUE BOUNCE (Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com)     15 November 2012

As long as signature are all right the bank will pass or refuse the cheque depending upon balance in the account.

The issue will come in court and NEGOTIABLE INSTRUMENTS ACT do not permit the holder to put date on a blank cheque. But the accused has to prove that the cheque issued was blank.

Sagnik (Management Trainee)     19 November 2012

Thank you very much for all the answers. I need to place the said views in front of the management, hence can any one quote me a section or a case law which clearly establishes that an undated cheque can be encashed by the drawee after filing in the date by himself or any section or case law hinting at a similar thing because the management will ask for something more substantial to verify the said point?  Thank you very much once again.

Regards,

Sagnik Sanyal

Advocate Rohit (Advocate)     19 November 2012

Dear Sagnik,

 

You may ask your Management to allow you to appoint an Advocate who could come to your office and explain the management properly about the liability on giving undated cheques or as such.

 

Regards,

Advocate Rohit Dalmia

9324538481

Mumbai

CHEQUE BOUNCE (Accused in cheque bounce can be convicted and money be recovered .PROSECUTE PROPERLY. chequebounce1@gmail.com)     19 November 2012

 

judgment of the Division Bench of the Kerala High Court in

 Lillykutty v. Lawrance 2003 (2) DCR 610 in the following words:

The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque.

 No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument.

Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and prove it.

 Therefore the mere fact that the payee's name and the amount shown in the cheque are in different handwriting is not a reason for not honouring the cheque by the Bank.

 Banks would normally see whether the instrument is that of the drawer and the cheque has been signed by the drawer himself

M.RAMESH.NAIK (CEO)     07 April 2015

the  undated  cheque   can  not  be  filled  up  by   anybody  other  the  issuer.  as  per  supreme  court orders  it  amounts  to  material  alteration  .a  undated  cheque  is  a  mere  bill  of  exchange  and  not  a  negotiable  instrument.  . hence  can  not  be  used  under  138  of   N I  act  after  filling  up  and  bouncing.  many  judgements  are  available  in  internet.

YOGESHWAR. (ADVOCATE HIGH COURT-criminal /civil -youract@gmail.com)     07 April 2015

You say there are many citations , can you please name  few of them which confirm your theory.

M.RAMESH.NAIK (CEO)     07 April 2015

undated cheques are  only  bill  of  exchange   and  not  a negotiable  instrument.writing of dates other than issuer  amounts  to  material  alteration  as  noted  by  supreme  court.  most  of  undated  cheques  are  having  status  of  cheques  issued  as  security  and  can  not  be  used  under  section  138  of  N  I  ACT.  MANY  SUPREME  COURT  ORDERS  ARE  AVAILBLE  IN  NET      

M.RAMESH.NAIK (CEO)     07 April 2015

. Date of drawn of PDC

It cannot be the date which a PDC bears. It is the date on which the PDC was made or delivered. The Supreme Court order that a PDC is a Bill of Exchange till the date which it bears and becomes the cheque on that date, I am sure, is decided without considering S.68 of The Indian Stamp Act. I will not comment about illegality of a PDC by referring to S.68 of The Indian Stamp Act, but this section and S.46 of the NI Act, conclusively defines the date of drawn, so S.138(a) the date of dishonor within 6 months of date of drawn must be seen in this light. Supreme Court has unwittingly taken away this defense from drawer. S.46 alone must be honored in conjunction with S.138(a) in absence of any new consent by drawer.


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