Wednesday, 17 February 2016

When it is not necessary to send cheque to hand writing expert for analysis in case of dishonour of cheque?

Having regard to the arguments advanced, the
entire case has been examined.
(9) To arrive at just conclusion, it would be profitable to
reproduce provisions of section 20 of the NI Act. Section
20 of the Negotiable Instruments Act reads as follows:-
"20.Inchoate stamped instruments- Where
one person signs and delivers to another a
paper stamped in accordance with the law
relating to negotiable instruments then in force
in India, and either wholly blank or having
written thereon an incomplete negotiable
instrument, he thereby gives prima facie
authority to the holder thereof to make or
complete, as the case may be, upon it a
negotiable instrument, for any amount
specified therein and not exceeding the amount
covered by the stamp. The person so signing
shall be liable upon such instrument, in the
capacity in which he signed the same, to any
holder in due course for such amount: provided
that no person other than a holder in due
course shall recover from the person delivering
the instrument anything in excess of the
amount intended by him to be paid
thereunder."
(10) A bare perusal of the provisions shows that there is
a clear mandate under section 20 of the Negotiable
Instruments Act to the effect that such an instrument can
be negotiated by the maker thereof by simply signing and
delivering the same to the holder in due course giving
thereby ample authority to the latter to fill up the content
of the instrument as intended by the maker thereof. Once
the execution is admitted, it shall be taken that the
cheque was issued by the accused in favour of the
complainant towards the discharge of the liability.  
(11) In the present case, it is admitted position that the
cheques were signed by the accused persons. The
provisions given in section 20 of the NI Act extracted
above makes it clear that the instrument may be wholly
blank or incomplete in any particular; in either case, the
holder has the authority to make or complete the
instrument as a negotiable one. The authority implied by
a signature to a blank instrument is so wide that the
party so signing is bound to a holder in due course even
though the holder was authorised to fill for a certain
amount. Section 20 of the Act declares that inchoate
instruments are also valid and legally enforceable. In the
case of a signed blank cheque, the drawer gives authority
to the drawee to fill up the agreed liability.
(12) Now coming to the facts of the present case, though
the respondent/accused had admitted that the signed
cheque was issued by him but it was denied that the
same was issued voluntarily by him in favour of the
petitioner against due payment. On the other hand, it
was sought to be contended that the cheque had been
issued for the security purposes but was misused by the
petitioner/complainant after having filled up the details
by herself. But as discussed above, as per Section 20 of
the NI Act, an individual is authorised to complete the
inchoate instrument deliver to him by filling up the
blanks. Moreover, a blank cheque could be filled up by
the 'Holder thereof', which will be a valid instrument in
the eye of Law.
(13) As regards the plea taken on behalf of the
respondent by his learned counsel that in para 18 of 
cross-examination the complainant-Sunita Debey (PW-1)
denied the suggestions made to her that blank space was
filled by herself it means blank space of the cheque was
not filled by the holder, therefore, benefit of section 20
of the NI Act cannot be given to the
complainant/petitioner. This submission of the learned
counsel is not tenable because it is a case of the
respondent/accused himself that the blank space of the
cheque was filled by the complainant/petitioner (holder
of the cheque), and being so, proposal was made by the
accused in cross-examination of the complainant. It
makes no difference whether proposal was accepted or
denied but when case itself was of accused that the
cheques were filled by the complainant then in view of
defence of the accused-persons certainly, the
complainant/petitioner has right to get benefit under
section 20 of the NI Act and there is no need to examine
the Handwriting Expert to verify whether the contents of
the cheques were written by the complainant or not.
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
Present
HON. SHRI JUSTICE B.D.RATHI

(Cri. Rev. No.56/2014)
Smt. Sunita Dubey
Vs.
Hukum Singh Ahirwar


 (Passed on 1st Day of December, 2014)
Per B.D.Rathi, J. -

As the grievance raised in the aforesaid two cases is
identical and of similar nature, heard together and 2 Cri.Rev.Nos. 56/14 & 59/14
disposed of by this common order.
(2) Both the revisions have been preferred under
Section 397/401 of the Code of Criminal Procedure 1974
in short the 'Code' against an order dated 17/12/2013
passed by the Fourth Additional Sessions Judge Vidisha
district Vidisha (M.P.),in Criminal Revision Nos.118/2013
& 119/2013 whereby the applications of the respondents/
accused under Section 45 of the Indian Evidence Act
were allowed by setting aside the orders of dismissal
passed by the trial court dated 6/8/2013 in Criminal Case
Nos. 232/12 and 475/12.
(3) For facility of reference, the facts are being taken
from Cri.Rev.No.56/14. As per the case of the
petitioner/complainant, she advanced a sum of Rs.
2,00,000/- to the respondent/accused and in turn the
respondent-Hukum Singh issued a cheque No.892743
dated 12/9/2011 in favour of the complainant/petitioner
drawn on State Bank of India Branch Vidisha. When the
petitioner presented the said cheque at the concerning
Bank same came to be dishonoured for want of sufficient
fund in the account of the holder of the cheque. The
complainant then issued notice to the accused,
demanding payment within fifteen days from the receipt
of the notice failing which the respondent/accused was
liable to be prosecuted for having committed offence
punishable under section 138 of the Negotiable
Instruments Act, but as the respondent/accused refused
to pay even after receipt of the notice, a complaint under
section 138 of the Negotiable Instruments Act was filed
by the petitioner in the Court of the Judicial Magistrate,
against him.  3 Cri.Rev.Nos. 56/14 & 59/14
(4) During the course of proceedings of the trial in the
complaint case, the accused moved an application under
section 45 of the Evidence Act. The gist of the
application is to the effect that the accused had taken
only a sum of Rs. 1,50,000/- on credit out of which Rs.
96,000/- was paid by him to the complainant and he was
further ready to pay balance amount of Rs. 54,000/-. He
denied to have taken a sum of Rs. 2,00,000/- from the
complainant. He also denied to issue a cheque against
the debt of Rs. 2,00,000/- in favour of the complainant on
12/9/2011. On the other hand, he stated that the
complainant had taken two blank cheques from him as a
security bearing No.221478 and 892743 and same were
signed by him as account holder. It is submitted that the
complainant after filling the date of 12/9/2011 and the
amount of Rs. 2,00,000/- in Cheque No. 892743
presented at the bank for encashment. Under these
circumstances in order to verify the correctness of the
alleged act of the complainant the respondent/accused
moved an application under section 45 of the Evidence
Act before the trial court for seeking the relief to
examine insertion of the entries in the cheque through
Handwriting Expert. Said application was rejected vide
order dated 6/8/2013 passed in Criminal Case No.232/12.
Against the dismissal order dated 6/8/2013, the accused
preferred Cri.Rev.No.119/13 before the Revisional Court.
The learned Revisional Court after considering the
arguments of both the sides, allowed the prayer of the
accused vide impugned order, assailed herein, hence, the
revision before this court.
(5) Similarly, same application under section 45 of the 4 Cri.Rev.Nos. 56/14 & 59/14
Evidence Act was filed in Cri. Case No. 475/12 by the
respondent-accused Devkishan by alleging that Cheque
No.540211 was signed by him but other entries were full
filled by the complainant, therefore, to verify the alleged
act of the complainant an expert opinion may be called.
The application was dismissed against which Cri. Rev.
No.118/13 was preferred. Same was allowed and the
impugned order was passed.
(6) Learned counsel for the petitioner contended that
in the application filed under section 45 of the Evidence
Act it was admitted by the accused that the cheque was
signed by him, therefore, the revisional court was in
error to allow the application after setting aside the
order of the trial court whereby application of the
accused was dismissed. It is also submitted by the
counsel that as per section 20 of the Negotiable
Instruments Act, 1881 when incomplete cheque was
issued by the accused it means accused gives prima facie
authority to the holder thereof to make or complete the
cheque and in such a situation if any further entry was
made by the complainant then same cannot be examined
through opinion by the Handwriting Expert. It is
therefore contended that the order impugned is liable to
be quashed. In support of the arguments, learned counsel
for the petitioner placed reliance on the decisions in the
case of Bhadauria Tiles Vs. Ramkumar Singh
Kushwah 2011(4) MPHT 178 and Satyendra
Upadhyaya Vs. Omprakash Rathore @ Japan Singh
2010(5) MPHT 104.
(7) On the other hand, learned counsel for the 5 Cri.Rev.Nos. 56/14 & 59/14
respondent contended that the revisional court has not
committed any illegality in passing the order. The order
was necessitated to bring out the truth in the prosecution
case, but unfortunately, prayer of the accused was
rejected by the trial court which mistake was corrected
by the revisional court. It is therefore prayed that this
revision be dismissed. It is also submitted by the learned
counsel that when complainant Sunita Dubey (PW-1) was
examined during her cross-examination in para 18, it was
admitted by her that the accused signed the cheque by
using blue ink but remaining entries were written in
black ink. It is also pointed out by the learned counsel for
the respondent/accused that complainant Sunita Dubey
(PW-1) in her cross-examination denied the suggestion
that blank space of the cheque was filled by herself by
using black ink or through anybody else. In this
connection learned counsel submitted that because blank
portion of the cheque was not completed by the accused
therefore, in such circumstances presumption cannot be
drawn under section 20 of the NI Act and to rebut the
same if opportunity is given by the revisional court, the
order cannot be said to be faulted with. It is also
submitted by the counsel for the respondent that any
kind of presumption is rebutable and in that view
granting of opportunity by the revisional court to
examine the entries by the Handwriting Expert is in
accordance with law and no interference is warranted. In
support of her arguments, learned counsel placed
reliance on the decisions in the cases of Nandlal S/o
Dayaram Dewani & others Vs. State of Maharashtra
2007(1) MPLJ 84 and Ronald Wood Mathams Vs.
State of West Bengal (AIR 1954 SC 455). 
(8) Having regard to the arguments advanced, the
entire case has been examined.
(9) To arrive at just conclusion, it would be profitable to
reproduce provisions of section 20 of the NI Act. Section
20 of the Negotiable Instruments Act reads as follows:-
"20.Inchoate stamped instruments- Where
one person signs and delivers to another a
paper stamped in accordance with the law
relating to negotiable instruments then in force
in India, and either wholly blank or having
written thereon an incomplete negotiable
instrument, he thereby gives prima facie
authority to the holder thereof to make or
complete, as the case may be, upon it a
negotiable instrument, for any amount
specified therein and not exceeding the amount
covered by the stamp. The person so signing
shall be liable upon such instrument, in the
capacity in which he signed the same, to any
holder in due course for such amount: provided
that no person other than a holder in due
course shall recover from the person delivering
the instrument anything in excess of the
amount intended by him to be paid
thereunder."
(10) A bare perusal of the provisions shows that there is
a clear mandate under section 20 of the Negotiable
Instruments Act to the effect that such an instrument can
be negotiated by the maker thereof by simply signing and
delivering the same to the holder in due course giving
thereby ample authority to the latter to fill up the content
of the instrument as intended by the maker thereof. Once
the execution is admitted, it shall be taken that the
cheque was issued by the accused in favour of the
complainant towards the discharge of the liability.  
(11) In the present case, it is admitted position that the
cheques were signed by the accused persons. The
provisions given in section 20 of the NI Act extracted
above makes it clear that the instrument may be wholly
blank or incomplete in any particular; in either case, the
holder has the authority to make or complete the
instrument as a negotiable one. The authority implied by
a signature to a blank instrument is so wide that the
party so signing is bound to a holder in due course even
though the holder was authorised to fill for a certain
amount. Section 20 of the Act declares that inchoate
instruments are also valid and legally enforceable. In the
case of a signed blank cheque, the drawer gives authority
to the drawee to fill up the agreed liability.
(12) Now coming to the facts of the present case, though
the respondent/accused had admitted that the signed
cheque was issued by him but it was denied that the
same was issued voluntarily by him in favour of the
petitioner against due payment. On the other hand, it
was sought to be contended that the cheque had been
issued for the security purposes but was misused by the
petitioner/complainant after having filled up the details
by herself. But as discussed above, as per Section 20 of
the NI Act, an individual is authorised to complete the
inchoate instrument deliver to him by filling up the
blanks. Moreover, a blank cheque could be filled up by
the 'Holder thereof', which will be a valid instrument in
the eye of Law.
(13) As regards the plea taken on behalf of the
respondent by his learned counsel that in para 18 of 
cross-examination the complainant-Sunita Debey (PW-1)
denied the suggestions made to her that blank space was
filled by herself it means blank space of the cheque was
not filled by the holder, therefore, benefit of section 20
of the NI Act cannot be given to the
complainant/petitioner. This submission of the learned
counsel is not tenable because it is a case of the
respondent/accused himself that the blank space of the
cheque was filled by the complainant/petitioner (holder
of the cheque), and being so, proposal was made by the
accused in cross-examination of the complainant. It
makes no difference whether proposal was accepted or
denied but when case itself was of accused that the
cheques were filled by the complainant then in view of
defence of the accused-persons certainly, the
complainant/petitioner has right to get benefit under
section 20 of the NI Act and there is no need to examine
the Handwriting Expert to verify whether the contents of
the cheques were written by the complainant or not.
(14) That apart it is not a case of presumption but it is a
case of “authority”, therefore, the arguments advanced
by the counsel for the respondent and decisions cited in
support thereof are not acceptable. Hence, in the
considered opinion of this court, the revisional court
committed an error to allow the applications under
section 45 of the Evidence Act. The impugned orders
passed by the revisional court dated 17/12/2013 in
Criminal Revision Nos.118/2013 & 119/2013 are
therefore not sustainable in law and are set aside.
Accordingly, both the revisions are allowed in
confirmation with the orders passed by the trial court 
dated 6/8/2013 in Criminal Case Nos. 232/12 and 475/12.
(15) A copy of this order be sent to the trial court for
proceeding further as per law.

 (B.D.Rathi)
 Judge
(Bu) 
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