Negotiable instruments act
venkatesh Rao
(Querist) 16 November 2012
This query is : Resolved
Dear experts,
My friend accused under 138 NI act stands convicted. facts:
1. Cheque for Rs.280000/- alleged to have been issued.
2. Cheque bounced.
Defence (in fact reality):
1. Daughter of accused stole signed but blank cheque.
2. gave to her husband who gave cheque to complainant and took money.
3. Complainant filled up the contents of the cheque.
4. Hand writing experts opininon that signature and other writings differ.
Yet, court convicted.
Learned experts, would you please give any SC citations of SC.
ajay sethi
(Expert) 16 November 2012
you have good case . if amount , date , name of parties filled in by complainant no cheque bouncing case maintanable. further hand wrting expert has opined that signature differs .
ajay sethi
(Expert) 16 November 2012
Section 87 of the Negotiable Instruments Act, which reads as follows:
"87. Effect of material alteration - Any material alteration of a negotiable instrument renders the same void as against any one 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;
in BPDL Investments (Pvt.) Ltd. v. Maple Leaf Trading International (Pvt.) Ltd. to contend that if there
are material alterations in the cheque then such an instrument is rendered void and could not have been presented for payment to the bank. Reliance is also placed on the decision of the Supreme Court in Kalyani Baskar v. M.S. Sampoornam to contend that
every possible assistance should be offered by the court when an accused in a complaint case seeks directions to refer a disputed cheque for the opinion of a handwriting expert. It is submitted that in the said case the Supreme Court held that where a cheque was doubted as to its authenticity, the trial court ought not to refuse the request of the accused sending it for the opinion of the expert.
ajay sethi
(Expert) 16 November 2012
judgment of the Division Bench of the Kerala High Court in Lillykutty v. Lawrance 2003 (2) DCR 610 in the following words:
In the instant case, signature is admitted. According to the drawer of the cheque, amount and the name has been written not by the drawer but by somebody else or by the payee and tried to get it encashed. We are of the view, by putting the amount and the name there is no material alteration on the cheque under Section 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. There is no rule in banking business that payee's name as well as the amount should be written by drawer himself. In the instant case Bank has never found that the cheque was tampered with or forged or there is material alteration or that the handwriting by which the payee's name and the amount was written was differed. The Bank was willing to honour the cheques if sufficient funds were there in the account of the drawer even if the payee's name and the amount was written by somebody else other than the holder of the account or the drawer of the cheque. The mere fact that the payee's name and the amount shown are not in the handwriting of the drawer does not invalidate the cheque. No law provides in the case of cheques the entire body has to be written by the drawer only. What is material is the signature of the drawer and not the body of the instrument. Therefore when the drawer has issued the cheque whether the entire body was written by the drawer written beyond the instructions of the drawer, whether the amount is due or not, those and such matters are defenses which drawer has to raise and prove it. Therefore the mere fact that the payee's name and the amount shown in the cheque are in different handwriting is not a reason for not honouring the cheque by the Bank. Banks would normally see whether the instrument is that of the drawer and the cheque has been signed by the drawer himself. The burden is therefore entirely on the drawer of the cheque to establish that the date, amount and the payee's name are written by somebody else without the knowledge and consent of the drawer. In the instant case, the drawer of the cheque has not discharged and burden. Apart from the interested testimony of the drawer, no independent evidence was adduced to discharge the burden.
V R SHROFF
(Expert) 16 November 2012
MATERIAL ALTERATION, ESPECIALLY DATE
Once accuse deny, it is complainant who have to prove.
This material alteration is vital.
accused get aquitted
Guest
(Expert) 17 November 2012
Agree with experts.
