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2001 DIGILAW 1785 (RAJ)

Sunil Kumar Tyagi v. State of Rajasthan

2001-11-08

H.R.PANWAR

body2001
JUDGMENT : 1. By this criminal misc. petition under section 482 Criminal Procedure Code, petitioner seeks quashing of proceedings in criminal case No. 242/96 pending against him in the Court of Judicial Magistrate, 1st Class, Bar, District Pali for the offence under section 138 of the Negotiable Instruments Act. (hereafter referred to as 'the Act'). 2. The petitioner filed an application before the trial Court under section 258 and 195(2) Criminal Procedure Code Subsequently on 5.6.1999, petitioner requested that application filed by him under section 258 Criminal Procedure Code be treated as an application under section 245 Criminal Procedure Code and requested for discharge in the aforesaid criminal case on the ground that the cheque issued by him in favour of non-petitioner No. 2 was undated and date has been inserted by the non- petitioner No. 2 and thereafter, the cheque was presented to the Bank which was dishonoured for want of fund. It was further prayed by application under section 195(2) Criminal Procedure Code the trial Court may lodge the complaint against the non-petitioner No. 2 for the offence punishable under sections 467, 468, 471 and 474 Indian Penal Code to prosecute the non-petitioner No. 2. The trial Court by a reasoned order dismissed both the applications filed by the petitioner. Aggrieved by the order impugned, petitioner has filed this criminal misc. petition under section 482 Criminal Procedure Code seeking quashing of criminal proceeding noticed above. 3. I have heard learned counsel for the parties and perused the order impugned. There is no dispute with regard to issuance of cheque in favour of non-petitioner No. 2 by the petitioner for the sum mentioned therein. This has been admitted by the petitioner that cheque was issued by him in favour of non-petitioner No. 2 for the amount mentioned therein but the only dispute raised by the petitioner is that it was undated cheque and petitioner has altered the cheque by inserting the date therein. He submitted that insertion of the date in the cheque arnounts to material alteration rendering the cheque void and, therefore, the cheque which was presented to the Bank by non- petitioner No. 2 was a void cheque and he cannot be prosecuted for the dishonour of void cheque in the criminal case. On this ground, the petitioner requested his discharge in the said criminal case. 4. On this ground, the petitioner requested his discharge in the said criminal case. 4. Learned counsel for the petitioner has relied on a judgment of Andhra Pradesh High Court reported in AIR 1986 (AP) 120 , Jayantilal v. Zubeda Khanum. Learned counsel for non-petitioner No. 2 contended that insertion of date on undated cheque does not amount to material alteration and, therefore, the cheque was valid and on presentation to the Bank, it was dishonoured for want of fund (insufficient fund) and therefore, the petitioner has committed the offence punishable under section 138 of the Act and is being rightly tried for the said offence by the trial Court. He has relied on a judgment of Division Bench of Kerala High Court in Bhaskaran Chandrasekharan v. Radhakrishnan, 1998 Cr.L.J. 3228 and the judgment of Hon'ble Supreme Court in Ashok Yeshwant Badeva v. Surendra Madhavrao Nighojakar and another, AIR 2001 SC 1315 . In Bhaskaran Chandershekharan v. Radhakrishnan (supra), the only question came up for consideration before the Division Bench of Kerala High Court was as to whether insertion of a date on an undated cheque would amount to material alteration within the meaning of Section 87 of the Act ? Section 87 of the Act reads as under : "87. Material alteration - Insertion of a date on undated cheque would not amount to material alteration since holder in due course has got implied authority to do so unless it was otherwise proved by the drawer of cheque." 5. When the issuance of cheque, signature thereon, amount and the name shown in the cheque is admitted by the petitioner, then the burden is entirely on the petitioner defendant to show that cheque was not supported by any consideration. Cheque is an instrument in writing containing unconditional offer signed by the maker directing his specified banker to pay on demand a certain sum of money mentioned therein to the payee or to the other persons or drawer of the instrument. Presumption as to negotiable instrument envisages under section 118 of the Act which reads as under : "118. Cheque is an instrument in writing containing unconditional offer signed by the maker directing his specified banker to pay on demand a certain sum of money mentioned therein to the payee or to the other persons or drawer of the instrument. Presumption as to negotiable instrument envisages under section 118 of the Act which reads as under : "118. Presumption as to negotiable instruments : Until the contrary is proved the following presumptions shall be made - (a) consideration that:- every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted; endorsed, negotiated or transferred, for consideration; (b) as to date:- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance:- that every accepted bill of exchange was accepted with a reasonable time after its date and before its maturity; (d) as to time of transfer:- that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsement:- that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps:- that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course:- that the holder of a negotiable instrument is a holder in due course : provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him." 6. In the instant case, there is no dispute with regard to the execution of cheque by the petitioner. Not only this the petitioner has admitted execution of cheque, the person in whose favour the cheque is drawn and amount mentioned therein. The initial burden is on the non-petitioner No. 2 to prove that cheque was issued by the petitioner. In the instant case, there is no dispute with regard to the execution of cheque by the petitioner. Not only this the petitioner has admitted execution of cheque, the person in whose favour the cheque is drawn and amount mentioned therein. The initial burden is on the non-petitioner No. 2 to prove that cheque was issued by the petitioner. As soon as the execution of cheque is proved, the Rule of presumption as envisaged under section 118 of the Act comes into play that the said cheque was supported by consideration, thereafter it is for the cheque issuing parties i.e., the petitioner to show that cheque, though issued is not supported by valid consideration. 7. It was held in Bhaskaran Chandrasekharan's case (supra) that, if alteration is made with the consent of the drawer of the cheque, it may not amount to material alteration, because the holder of the undated cheque has not the implied authority to put the date on the cheque. Once the date is shown on the cheque, the burden is on the drawer of the cheque to prove that the payee had not authority to do so. It was further held that the insertion of the date on an undated cheques would not amount to material alteration, since the holder in due course has got implied authority to do so, unless it is otherwise proved by the drawer of the cheque. The judgment relied on by the learned counsel for the petitioner has been considered by the Division Bench of Kerala High Court in Bhaskaran Chandrasekharan v. Radhakrishnan (supra) and is distinguishable on facts as such it is of no help to the petitioner. 8. In Ashok Yeshwant Badeva v. Surendra Madhavrao Nighojakar (supra) the question which arose for consideration before Hon'ble Supreme Court was that:- "Whether period of six months for presentation of cheque to the banker, as required under Proviso (a) to Section 138 of the Act, should be reckoned from the date mentioned on the face of the cheque or a date previous to that when it was made over by the drawer to the drawee." 9. The Hon'ble Supreme Court held as under : "For prosecuting a person for an offence under Section 138 of the Act, it is inevitable that the cheque is presented to the banker within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier. When a post-dated cheque is written or drawn, it is only a bill of exchange and so long the same remains a bill of exchange, the provisions of Section 138 are not applicable to the said instrument. The post-dated cheque becomes a cheque within the meaning of Section 138 of the Act on the date which is written thereon and the 6 months period has to be reckoned for the purposes of Proviso (a) to Section 138 of the Act from the said date. Thus while respectfully agreeing with the law laid down by this Court in the case of Anil Kumar Sawhney 1993 (4) SCC 424 ) we hold that six months period shall be reckoned from the date mentioned on the face of the cheque and not any earlier date on which the cheque was made over by the drawer to the drawee." 10. In Anil Kumar Sawhney v. Gulshan Rai, (1993) 4 SCC 424 , the Hon'ble Supreme Court held that the post-dated cheque shall be deemed to have been drawn on the date it bears and not the previous date on which it was made over by the drawer to the drawee. Considering the concept of post-dated cheque, the Hon'ble Supreme Court refused to quash the prosecution of the appellant therein who was facing the criminal prosecution for the offence under section 138 of the Act.In the instant case, once the execution of a cheque is admitted, presumptions under section 118 of the Act arise, until the contrary is proved. Only case of the petitioner is that the date mentioned on the cheque was inserted by the non-petitioner No. 2. This itself would not amount to material alteration, so as to render the cheque void. In this view of the matter, I am of the considered opinion that the said cheque was presented within six months from the date which is written thereon and remained unpaid for want of sufficient fund. This itself would not amount to material alteration, so as to render the cheque void. In this view of the matter, I am of the considered opinion that the said cheque was presented within six months from the date which is written thereon and remained unpaid for want of sufficient fund. On demand of payment by the non-petitioner No. 2 by notice in writing, the petitioner failed to make payment of amount mentioned therein to the non- petitioner No. 2. Thus, prima facie offence under section 138 of the Act is made out. 11. Consequently, I find no ground to quash the prosecution. It is settled law that the inherent power of the Court under section 482 of the Criminal Procedure Code should be very sparingly and cautiously used only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of process of Court, if such power is not exercised. So far as present case is concerned. since prima facie offence under Section 138 of the Act is made out, no case for interference is made out. 12. In view of the aforesaid discussion, I find no substance in this case. Accordingly, it is dismissed.Petition dismissed.