U/sec.138 of ni act.
Suresh Babu Rai
(Querist) 14 August 2012
This query is : Resolved
Good Evening All and Happy Independence day in advance ...
I am defending a case filed U/Sec. 138 of NI Act on behalf of Sole Accused. In fact one financier (Doing illegal finance business without having any valid licence) with his own hand writing filled up the blank columns issued by the Accused with his signature ( I am not disputing the signature on the cheque)for security against a loan transaction. Having had several cases filed by the said financier has wrote his wifes name on the cheque and got it bounced filed the complainant with his wife.On its bouncing she has issued a Legal Notice to my client, but he failed to reply for the same.
Is it necessary to reply for the Legal Notice issued U/Sec. 138 of NI Act ? (If not any citations).
During the course of cross-examination the complainant admitted as under.
Yes, my husbund with his own hand writing has filled up the columns.
The pen ink used by the accused is deffers with the pen ink used by my husbund.
Accused issued blank cheque to me.
No promissory Note or receipt were reduced in to writing at the time of alleged transaction, even no one exept my husbund were present at the time hand loan transaction.
Sir,
No where in the complaint or her cheif the complainant deposed that with the instructions of the accused the coloms of cheqe wrote by her husbund. Even she did not mentioned the name of her husbund in the list of witnesses in her complaint.
After my cross-examinantion the complainant has filed a petition to reopen the case to examine her husbund on her behalf.
How can I defend the said Cr.M.P filed at the stage of 313 ? Hope reply.
SAINATH DEVALLA
(Expert) 15 August 2012
Dear Suresh,
Replying to the legal notice is not mandatory.Now at 313 stage it is immaterial.As she has recorded that the contents of the cheque were filled by her husband,you can pray to the court to include him as a witness for crossing.What was the pleading of the accused in the initial examination?He has to withstand the same stance during examination u/s 313 crpc.There is nothing much the lawyer can do during 313,you have to be careful during arguments.
ajay sethi
(Expert) 15 August 2012
your cleint will be acquitted . once complainant admist that blank cheque has been issued and amount , dates , names of parties filled in it amounts to material alteration of cheque . if no authroity given by accused to fill in details no case under section 138 NI is maintanable
ajay sethi
(Expert) 15 August 2012
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) 15 August 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.
