Whether prosecution for dishonour of cheque is maintainable on basis of stolen cheque?

Apart from the above, it seems that the court below

has lost sight of the presumptions available to the

complainant under Section 118(g) of the N.I. Act which says

that until the contrary is proved, it shall be presumed that

the holder of a negotiable instrument is a holder in due

course. Here, admittedly, the complainant is the holder of

the cheque. According to the accused, Ext.P1 cheque was

issued by him to his elder brother DW2, while DW2 was an

inpatient in a hospital, and that the said cheque was stolen

away by the complainant. Even in such case, there is clear

admission from the part of the accused that the complainant

is the holder of the cheque. Over and above it, the

complainant could present the cheque before the Bank and

got it dishonoured. Therefore, when it is admitted that the


complainant is the holder of the cheque, the presumption

under Section 118(g) of the N.I.Act is available to the

complainant.         It shall be presumed that the complainant

being the holder of the cheque is the holder in due course

within the meaning of Section 9 of the N.I. Act.

       10. The learned counsel for the petitioner has invited

the attention of this Court to the decision in Michael

Kuruvilla v. Joseph J. Kondody[1998(1) KLT 384] wherein

it was held that the non-mentioning of the payee's name and

the striking off of the words 'or bearer' in a cash cheque will

not make the cheque invalid. It was held therein that even

in such case the person who was the holder of the cheque

could be a holder in due course, who could well maintain a

complaint under Section 142 of the N.I.Act.

       11.     Here, in this particular case, the position is much

better. The cheque is styled as a self cheque and over and

above it, the term 'or bearer' has not been scored off. A

similar situation as the one in this case was dealt with by the


Madhya Pradesh High Court in Babu Lal v. Kewal Chand

[2008(1) Crimes 147(MP)] wherein also it was held that such

a complainant who was holding such a cheque could be a

holder in due course, who could maintain a complainant

under Section 142 of the N.I. Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                      MR. JUSTICE B.KEMAL PASHA

               15TH DAYOF JULY 2016

                                          CRL.A.No. 1870 of 2009
                                     

                     SARAFUDHEEN, S/O.MOIDU,
                    Vs
              T.MUHAMMED ASHRAF, S/O.MOIDU,
             Citation:2016 ALLMR(CRI) JOURNAL573

Print Page

Whether prosecution for dishonour of cheque can be quashed on ground that cheques were stolen?

It is pertinent to note that the learned counsel for the respondent drew the attention of this Court to page 10  of the petitioner's typed-set of papers, wherein, it was specifically mentioned that these same people are presenting the cheques, time and again from various places.  They are giving mental and physical stress, in all manners. Due to these people, me and my family have an life threating situation , dated 17.09.2011, which is after filing of the respondent's complaint.  Whether the cheque has been issued for discharging legally enforceable subsisting liability or  stolen the cheque from the house of the petitioner, has to be decided only at the time of trial and after letting oral and documentary evidence. It is only question of fact.

Considering the aforestated circumstances of the case, I do not find any reasons to quash the proceedings in S.T.C.No.170 of 2011 and therefore, the same deserves to be dismissed. 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 DATED : 09.02.2016

CORAM :

 MS. JUSTICE R.MALA

Crl.O.P.No.5614 of 2013

and M.P.Nos.1 to 3 of 2013

Senthil Kumar Vs. K.K.Sathishkumar

Citation: 2016 ALLMR(CRI)JOURNAL447

Print Page