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2013 DIGILAW 833 (JHR)

Neyaz Ahmad v. State of Jharkhand

2013-07-11

R.R.PRASAD

body2013
Judgment This application is directed against the order dated 20.3.2012 passed in C-1 case no. 1327 of 2010 whereby and whereunder prayer made by the petitioner, to send the cheque to a handwriting expert for verification of the handwriting appearing over the cheque in question with the admitted handwriting of the petitioner, was rejected. 2. Mr. Ananda Sen, learned counsel appearing for the petitioner submits that it is the case of the petitioner that one blank cheque bearing no.168519 having signature of the petitioner over it got lost which anyhow came in possession of the complainant who by putting material particulars including the amount over it utilized it for lodging a case under Section 138 of the Negotiable Instrument Act by taking a plea that the cheque had been given by the petitioner as against debt but the said cheque on its deposit got dishonoured. Thus, it becomes a case of material alteration and thereby the said material alteration renders the said cheque as void in terms of the provision as contained in Section 87 of the Negotiable Instrument Act and therefore, in order to prove that there is material alteration, an application was filed for verification of the handwriting of the material particulars with the admitted handwriting of the petitioner. In other words, for verification of those writings whereby the amount has been written with the handwriting of the petitioner but the court below rejected the prayer, though it was quite necessary for just decision of the case and thereby the court did commit illegality in rejecting the prayer. 3. As against this, Mr. A.K. Das, learned counsel appearing for the opposite party no.2 submits that the petitioner has never denied his signature over the cheque and in that situation, there would be presumption in terms of the provision as contained in Section 118 of the Negotiable Instrument Act that negotiable instrument was made for consideration. That apart, presumption would always be there as to date, as to time of acceptance and its transfer till contrary is proved by its drawer. That apart, presumption would always be there as to date, as to time of acceptance and its transfer till contrary is proved by its drawer. In that event, when the petitioner has been accepting its signature over the cheque in question, the petitioner can never be allowed to deny that the said cheque was never for consideration or in other words, the petitioner had never put the amount over the cheque and therefore, prayer made by the petitioner for sending the said cheque before the handwriting expert for verification of the handwriting was wholly misconceived and hence, the trial court has rightly rejected the said prayer. 4. Learned counsel appearing for the opposite party no.2 has relied upon a decision of the Delhi High Court rendered in a case of Ravi Chopra vs. State and another decided on 13th March, 2008 and also in a case of Satyendra Upadhyaya vs. Omprakash Rathore @ Japan Singh [ (2010) 5 MPHT 104 ] as well as in a case of S. Gopal vs. D. Balachandran [2008(1) Bankman 346 (Mad.)]. 5. Thus, on one hand, the case which has been made by the petitioner is that since material particulars over the body of the cheque is not in the handwriting of the petitioner, it would be a case of ‘material alteration’ in terms of Section 87 of the Negotiable Instrument Act whereas case of the complainant-opposite party no.2 is that once the signature is admitted material particulars as to consideration, time, date and its transfer would be presumed to be correct unless contrary is proved. 6. Therefore, in the context of the submission one needs to take notice of the provision of Section 87 of the Negotiable Instrument Act which reads as follows: Section 87-Effect of material alteration-Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration of indorsee – And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of Sections 20, 49 86 and 125. 7. The provisions of this section are subject to those of Sections 20, 49 86 and 125. 7. The said provision does speak about the effect of material alteration but what is the material alteration, it has not been defined under the Act. However, from other provisions of the Negotiable Instrument Act, one can have an idea as to when there would be material alteration of a negotiable instrument. 8. In this regard, one may take notice of the provision of Section 20 of the Negotiable Instrument Act which talks about “inchoate stamped instruments”. It does stipulate that if a person signs and delivers a paper stamped in accordance with the law and “either wholly blank or have written thereon an incomplete negotiable instrument” such person thereby gives prima facie authority to the holder thereof to make or complete as the case may be upon it, for any amount specified therein and not exceeding the amount covered by the stamp. 9. Further the provision as contained in Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque. 10. Likewise, Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. 11. Further Section 125 of the Negotiable Instrument Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purpose of presentation for payment. 12. Therefore, the aforesaid provisions indicate that under the scheme of the Negotiable Instrument Act an incomplete cheque which is subsequently filled up by putting name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course. 13. 12. Therefore, the aforesaid provisions indicate that under the scheme of the Negotiable Instrument Act an incomplete cheque which is subsequently filled up by putting name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course. 13. This could be the only proposition keeping in view the provision as contained in Section 118 of the Negotiable Instrument Act which sets out various presumptions to as negotiable instruments. Those presumptions are with respect to consideration as to date, as to time of acceptance, as to transfer, as to endorsement as to stamp. The only exception to this is provided to proviso to Section 118 which reads as under: “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.” 14. Thus, having taken into account all those provisions one can find that under the scheme of the Act if the drawer of a cheque gives a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point of time is presented for payment, it can never be the case of material alteration in terms of Section 87 of the Negotiable Instrument Act and if that is so, any prayer made by the petitioner for verification of the handwriting of the endorsement made over there would be wholly misconceived. 15. In such situation, the trial court has rightly rejected the prayer. Accordingly, I do not find any merit in this application and hence, this application stands dismissed.