Cheque not filled though signed by drawer no defence in trial of offence u/s 138 of NI Act. Accused must prove cheque was not in discharge of a debt/liability
ABCAUS Case Law Citation:
ABCAUS 3278 (2020) (03) HC
Important case law relied upon by the parties:
M/s Surveka Distributors Pvt. Ltd and others v. M/s S.R. Retail Zone Pvt. Ltd., 2018(5) R.C.R. (Criminal) 317
Santhi v. Mary Sherly, 2011(4) R.C.R. (Criminal) 94
In the instant case, the petitioner had challenged the order passed by Judicial Magistrate dismissing the application of the petitioner/ accused for taking his own specimen handwriting for comparison of the same with the writing on the body of the cheque involved and the order passed by Sessions Court dismissing the revision petition against the said order of the trial Court.
The petitioner had given a cheque to the complainant in discharge of enforceable liability of the petitioner. The said cheque was defaulted in payment. Therefore, the complainant preferred a complaint against the petitioner u/s 138 of Negotiable Instrument Act (N I Act).
In his defence, the petitioner/accused took the plea that the cheque though undisputedly signed by him, however, was not `drawn’ by him; because he had not filled up the body of the cheque.
To prove his point, the petitioner/ accused moved an application before the trial Court for sending his sample handwriting to the expert for comparison of the same. However, the Trial Court declined that.
The Sessions Court while dismissing the revision petition, observed that the accused wanted to plead that it was not he, who filled up the body of the cheque; rather it was the complainant who filled up the cheque. However, the complainant had not even claimed in the complaint that the accused filled up the cheque. Rather it was the case of the complainant that when the cheque was sought to be handed over to the complainant, at that time, the body of the cheque was already filled up, except the signature.
According to the complainant, the petitioner/accused had put the signatures on the cheque in the presence of the complainant and, thereafter, handed over the same to him.
Further, it was observed by the trial Court that signatures on the cheque were not even disputed by the petitioner.
Accordingly, the Revisional Court held that even as per the law, it is not necessary that body of the cheque in question must have been filled by the accused/drawer himself. The body of the cheque could have been filed up by anybody.
Cheque not filled though signed by drawer no defense in trial of offence u/s 138 of NI Act
The Hon’ble High Court stated that it is nowhere provided under any law that a cheque would be a valid instrument only if all parts of the same are filled up by the drawer or the holder of the account himself or in his own handwriting. The petitioner could have, very well, got it filled up from anybody at his choice.
The Hon’ble High Court opined that the fact that the body of the cheque might have been in a handwriting different than the signatures of the petitioner is totally irrelevant; for the purpose of offence under Section 138 of NI Act. For proving offence under Section 138 of NI Act against an accused, the complainant is not required by law to prove that body of cheque was filled up by the accused himself or even with his consent. Therefore, any report qua writing in the body of the cheque would not have rebutted any `presumption’, as claimed by the accused/petitioner.
The Hon’ble High Court observed that provisions show that every cheque is a bill of exchange of a particular kind. Section 6 of the NI Act also prescribes that the `cheque’ can be in electronic form as well. The Court pointed out that here, the Act has again emphasised upon the `signature’ of the drawer, though in the digital form. Therefore, if the argument that the body of the cheque should have been filled up by or in the handwriting of the drawer only; to make it a validly drawn cheque; is taken to the logical end, then it goes against the provisions of the Negotiable Instruments Act itself as in that situation, there could not be any `cheque’ in the electronic form.
The Hon’ble High Court further observed that a bare reading of Section 5 of the Act also shows that the only thing which is insisted by this Section for validity of bill of exchange is the `signatures’ of the maker of the bill. Everything else has been left to be defined by the variable facts and circumstances of the case.
Hence, Hon’ble High Court opined that the fact that the body of the cheque is s not filled up by the drawer of the cheque, is totally immaterial in a trial for offence under Section 138 of NI Act.
The Hon’ble High Court further pointed out that Section 120 of the Act, creates an estoppel against the drawer of the cheque or maker of a promissory note or bill of exchange; by denying him the right to question the validity of the instrument as originally made or drawn. Therefore, there is no statutory or jurisprudential basis to hold that unless the body of the cheque is filled up by the drawer himself, the cheque would not be taken as having been validly `drawn’ by him. Once the signatures are not denied then it contains an in-built presumption that all the material particulars have been filled up either by the drawer or with his authorisation, unless the drawer proves it otherwise, by leading some other independent evidence.
The Hon’ble High Court stated that the fact that body of the cheque was filled up in handwriting other than that of the drawer of the cheque; is not any proof of the fact that the consent of the drawer; in drawing such a cheque was missing. If this is permitted then the drawer of the cheque can frustrate the provisions of Negotiable Instruments Act in virtually every case. He can get the cheque prepared as per his choice from some other person and can subsequently start pleading that he had not filled up the body of the cheque or that he had not consented to the filling of the body of the cheque. In such a situation, the payee or the holder in due course would have no means to prove his consent. Otherwise also, since the cheque is not a document which is required to be attested by witnesses for being a valid document, therefore, the complainant is under no legal obligation to examine a witness to prove the due execution of the same. On the contrary, if the drawer of the cheque takes a plea that his consent qua drawing of the cheque was missing, then it is, exclusively; for the drawer to prove the fact that he had not consented to the filling of the body of the cheque.
Accordingly. The Hon’ble High Court dismissed the appeal.
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ABCAUS Note:
Couple of months before the Hon’ble High Court had delivered the above judgment, the Hon’ble Supreme Court in a case had categorically held that under the NI Act it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer.
The Hon’ble Supreme Court stated that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
The above judgment of the Hon’ble Supreme Court [ABCAUS 2774A (2019) (02) SC ] was perhaps not brought to the notice of the Hon’ble High Court as it does not find mention in the judgment of the High Court.
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