Cheque returned case i.e. 138 ni act
NAYAK MAFATLAL GORDHANDAS
(Querist) 23 January 2012
This query is : Resolved
I am bank officer. I have borrowed some money from my friend by giving him four cheques of which one was blank and three were written with name and amount. He gave the blank cheque (signed by me) to his friend. His friend wrote his name and amount Rs.six lacs on that blank cheque. He wrote his name on the cheque twice, one by crossing lines on his name and second right spelling with name. There is no signature on alteration made by him in name by crossing the line on the name. The banker returned that cheque with the remark "funds insufficient" instead of the remark "alteration requires drawers authntication" as the cheque is "aterially altered" as per NI Act. He filed suit against me under 138. My advocate taken reply of the person who filed suit against me in court. Now, case is on F.S. (Final Statement) stage. I wont to produce the sheet of cheque book in which four cheques' details is written, also wants to produce the notice sent to the bank manager for his wrongful dishonour and remark of the said cheque. Sir, Please guide me urgent, because next date for hearing is 07/02/2012
Raj Kumar Makkad
(Expert) 23 January 2012
You have not mentioned whether you had replied the notice send by him prior to filing of the case or not and if yes then what was your reply.
The line of defence told by you in accurate. Your counsel might be well aware of the facts of the case so he be given a liberty to argue on the bases of pleading of the case with latest case laws.
Shonee Kapoor
(Expert) 23 January 2012
Defence is good, but liability still remains.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
V R SHROFF
(Expert) 24 January 2012
Opinion of expert, to prove material alteration, diff ink and age , penetration on chq paper, body of chq written later on, sign ink differ from amt, name & date ect be proved in hand writing expert's witness.
bank official should have been examined, to get evidence , that yes, otherwise also the cheque would not have been paid, due to material alteration, and there is material alt,
MR. NAYAK, YOU BEING BRANCH MANAGER of a bank, must have come across many of such cases, that u r called as witness for such matter.
You should never lose such defense opportunity.
Still time. Can Apply and examine these Two Witnesses You have to do it before the stage of Argument.
Otherwise , as rightly said by Mr.Kapoor & Mr.Makkad,it hold good defense.
However, I don't believe in sparing any stone upturned.
Adv Shroff
24-01-2012
Sudhir Kumar, Advocate
(Expert) 24 January 2012
Please see NI Act. Mr VM Shroff has rightly and validly picked thread. You are not an ordinary account holder. You are a bank officer who signed such a cheque which later on filed. You probably never knew that holder in due course has a right to fill the deficiency (date, amount etc) if left blank by the drawer. You forgot that the holder in due course has a title on the instrument. Apart from action under NI Act s/138 (which may fail as you may be able to prove lack of liability towards holder in due course)this is also a professional misconduct for you a sufficient ground for the bank to infer you unfit for future employment in bank. If it is Govt bank they are bound to take action because the CDA Rules of bank are replica of CCS(Conduct) Rules which warrant an employee to be holding absolute integrity (even in personal dealing). Such rule also oblige and employee to report to the employer of the fact of his being released on bail. If you are accused under NI Act you are likely to be applying for bail lest going to jail.
R.Ramachandran
(Expert) 24 January 2012
I think we are missing a very vital info in this query.
The querist says that the cheque was given to his friend (though name not filled), and the said friend gave the cheque to his friend. The friend of the friend has written his name on the cheque.
As rightly pointed out by Mr. Makkad, one is not sure as to whether the notice issued by the friend of friend was replied and if so what was the defence taken. Obviously, in this case, the drawer of the cheque can definitely say that he does not owe any money to the friend of the friend. But that defence should be taken in writing before the MM under Sec. 145(2).
V R SHROFF
(Expert) 24 January 2012
Shri RR
What u say is considered, That a stranger filed NI .
That's why Expert to prove who he is, and liability if any.
But act of Br, Mgr, to handover blank Signed chq, knowing very well the consequences thereof, as Rightly pointed out by Shri Sudhir Kumar, are serious, affecting his Defense.
SAINATH DEVALLA
(Expert) 24 January 2012
Dear Mr.Nayak,
Technically you have a good defence.But yet I am really surprised being a Bank Manager,you have acted in an ignorant manner flouting the bank service rules.You yourself would be dealing in many such cases with your defaulting customers.But still I would request you to go as per the suggestions of senior advocates like Mr.Makkad,Mr.Shroff,Mr.Sudhir Kumar and Mr.Sonee Kapoor.Sorry for the above remarks.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 24 January 2012
All other blanks can be filled but not the date.
The accused has a valid alibi that crossing with name is not signed.
Take clever cross and you will win hands down.
ajay sethi
(Expert) 24 January 2012
if in repect of blank cheque amount and date have been filed in it amounts to material lateration of cheque . there are number of judgements of various court wherein amount , date etc filed in it amounts to material lateration of cheque and no complaint is maintanbale under section 138 .
have you in reply to notice contended that blank cheque was issued . ?
have you examined any handwriting expert to that effect .
what is stand of complainant has he admittedf filling in amounts , date etc
prabhakar singh
(Expert) 24 January 2012
If you have given any reply to notice calling you to pay?If yes! then your defence has origin there.Else holder can not fill date and his name by cutting twice with out your sign on cutting.And you need to state you owe nothing to the holder in writing as defence.
V R SHROFF
(Expert) 24 January 2012
"All other blanks can be filled but not the date."
Please elaborate, Will help ALL understanding Defense, Mr. JSDN, FOR DEFENSE
NAYAK MAFATLAL GORDHANDAS
(Querist) 25 January 2012
My dear Sir(s),
I am thankful to you all for your advice, I may state that I know all the precautions to be taken before issuing BLANK cheque, but the time when a man who in need of cash to overcome the expenses of his beloved son who was studying in MBBS and daughter was studying in BE Computor. It was my "MAJBURI" i.e. no any other source except to give a blank cheque as per demand of my friend on whom I TRUST. At that time I was under SUSPENSION,which was action of the Bank Management to pressurise me to withdraw the suit filled against the District Collector who made insult of my self in Public Meeting when I was Lead District Manager by shouting unparliamentory words like:"TUM KAM NAHI KAR SAKTE HO TO RESIGN KAR DO 'GADHE' YOU GO OUT" Now, suspension is revoked but no difference of salary of suspension period is paid by the Bank. Bank has given in writing that the decesion of salary of suspension period will be taken subject to outcome of pending inquiry. Sir, departmental inquiry is partially completed ex-parte and against findings of IO and DA, I have submitted my reply but, eight months passed to that, no decesion taken by the management of the Bank in that regards, still it is hanging. Management have trasferred me 500km away from my native after revocation of suspension. I have made representation to the Authority.
Another thing, I have not given reply to the notice of dihonoured cheque, but meet personally to that man and discussed with him that he is doing totally WRONG.
Please, also show me the case laws and verdicts in the matter of material alteration in cheque.
Thanks and regards.
