Rambir Sharma vs M/S Hbn Housing Finance Ltd. on 11 October, 2017

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IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. MC. 862/2017
RAMBIR SHARMA …..Petitioner
Through: Mr. Raj Kumar Chandiwal and
Ms.Natasha Rani Khudania, Advocates.

Versus

M/S HBN HOUSING FINANCE LTD. …..Respondent
Through: Mr. Vipul Srivastava and Mr. Aditya
Sharda, Advocates.

CORAM:
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
ORDER

11.10.2017

1. The present petition has been filed under Section 482 of Code of
Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’)
read with Article 227 of the Constitution of India the petitioner
assailing the order dated 13.02.2017 (hereinafter referred to as the
‘Impugned Order’) passed by Additional Sessions Judge-05,
District West, Tis Hazari Courts, Delhi in Criminal Revision No.
09/2017 arising out of order dated 08.10.2016 passed by
Metropolitan Magistrate, Tis Hazari Courts, Delhi in CC No.
6929/16, Police Station – Vikas Puri, New Delhi. 


2. The contextual matrix of the case as set out in the petition is that,
the petitioner had obtained a housing loan of Rs.17,00,000/-
(Rupees Seventeen Lacs Only) from the respondent subject to
terms and conditions as contained in the Home Loan Agreement
executed between them, wherein the petitioner had agreed to

Crl. MC. 862/2017 Page 1 of 8
re-pay the loan amount in monthly instalments of Rs.20,403/-
(Rupees Twenty Thousand Four Hundred Three Only); that at the
time of the loan agreement, respondent took 3 blank cheque books
without signatures of the petitioner; that the petitioner failed to
comply with his contractual obligations and failed to pay monthly
instalments; that the petitioner allegedly issued a cheque bearing
No. 791387 dated 05.07.2013 for Rs.18,72,541 (Eighteen Lacs
Seventy Two Thousand Five Hundred Forty One Only) towards
full and final settlement of the debt; that the said cheque was
returned unpaid due to “Funds Insufficient”; that the respondent,
through its counsel sent a legal notice to the petitioner calling upon
him to pay the cheque amount and thereafter filed a complaint
bearing no. 6929/16 before the concerned court; that during the
course of examination of witnesses, the petitioner moved an
application under Section 243(2) Cr.P.C. read with Section 45 of
The Evidence Act, for seeking an opinion of a handwriting expert
upon the cheque which was dismissed by the Trial Court vide its
order dated 08.10.2016; that the petitioner challenged the said
order in the Criminal Revision Petition No. 09/2017, which was
dismissed vide order dated 13.02.2017 whereafter, the petitioner
preferred the present petition.

3. Learned counsel for the petitioner contends that the impugned
orders are bad in law and contrary to the material on record; that
the Trial Court failed to appreciate that the accused/petitioner must
be given an opportunity to adduce evidence in his defence when
there is a presumption of misuse of cheque as held in

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T. Nagappa Vs. Y. R. Muralidhar reported in (2008) 2 JC [NI]
211; that mere admission of the signatures on the cheques does not
give the presumption for legally enforceable debt and reliance has
been placed on a judgment passed by the Hon’ble High Court of
Kerala in Bajju G. Nath Vs. Girija Krishnakumar Anr. in
Crl.LP 290/2011; that the cheque was misused by the respondent
which is evident from the account statement of the respondent
which reflects that the subsequent numbers of the various cheques
series were presented before the date of the cheque in question and
hence it becomes necessary to get the cheque in question examined
through a handwriting expert; that the Trial Court erred in holding
that Section 20 of NI Act validates the blank signed cheques
whereas Section 20 only speaks for stamped paper/instrument i.e.
pronote and it is not applicable to the cheques.

4. Per contra, learned counsel for the respondent/complainant
supporting the impugned orders submits that there is no infirmity
in the impugned order and relied on the judgment of Ravi Chopra
vs. State Anr. reported in 2008 (102) DRJ 147.

5. I have given my thoughtful consideration to the submissions made
by the learned counsels for the parties and perused the material
available on record.

6. For the purpose of deliberation, the Section 20 of The Negotiable
Instruments Act, 1881′ is reproduced hereunder:

“Section 20: Inchoate stamped instruments.–
Where one person signs and delivers to another a
paper stamped in accordance with the law relating
to negotiable instruments then in force in 1[India],

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and either wholly blank or having written thereon
an incomplete negotiable instrument, he thereby
gives prima facie authority to the holder thereof to
make or complete, as the case may be, upon it a
negotiable instrument, for any amount specified
therein and not exceeding the amount covered by
the stamp. The person so signing shall be liable
upon such instrument, in the capacity in which he
signed the same, to any holder in due course for
such amount; provided that no person other than a
holder in due course shall recover from the person
delivering the instrument anything in excess of the
amount intended by him to be paid thereunder.”

7. In the case of Ramesh Goyal vs. State and Ors. Crl. A. 128/2017,
Decided on 31.05.2017, this Court has held that:

“Even if the theory of blank cheque were to be
accepted for the sake of consideration, the burden
is on the accused to justify it by cogent reasons.
There is no law that a person drawing the cheque
must necessarily fill it up in his own hand writing.
Once the signatures on the cheque are admitted,
the liability arising therefrom cannot be evaded on
the specious plea that the contents were not filled
up by the drawer of the cheque. When a blank
cheque is signed and handed over, it only implies
that the person signing it, and handing it over, has
given implied authority to the holder of the cheque
to fill up the blank portions, it being a matter of
legitimate presumption that he would understand
the consequences of doing so.”

8. In the case of Vijender Singh Vs. Eicher Motora Limited and Anr.

Crl.M.C.No. 1454/2011, decided on 05.05.2011, this Court has
held as under:

“Learned Counsel for the petitioner has next
contended that the Blank cheques have been given
which have been filled up by Respondent No.1 and

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attracts no legal consequences having been
tempered with. This argument has to be rejected
outrightly as there is no law that a person drawing
the cheque has to necessarily fill it up in his own
handwriting. Petitioner has not denied his
signatures on the cheques. Once he has admitted
his signatures on the cheque he cannot escape his
liability on the ground that the same cheque has
not been filled in by him. When a blank cheque is
signed and handed over it means that the persons
signing it has given implied authority to the holder
of the cheque to fill up the blank which he has left.
A person issuing a blank cheque is supposed to
understand the consequences of doing so. He
cannot escape his liability only on the ground that
the blank cheques have been issues.”

9. In Ravi Chopra Vs. State Anr. reported in 2008(102) DRJ 147,
this Court has observed that:

18. Section 20 NI Act talks of “inchoate stamped
instruments” and states 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, a negotiable instrument for any
amount specified therein and not exceeding the
amount covered by the stamp.” 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, it makes it clear
that by doing that the holder does not thereby
incurred the responsibility of an endorser.”
Likewise Section 86 states that where the holder
acquiesces in a qualified acceptance, or one

Crl. MC. 862/2017 Page 5 of 8
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. Section
125 NI Act permits the holder of an uncrossed
cheque to cross it and that would not render the
cheque invalid for the purposes of presentation for
payment. These provisions indicate that under the
scheme of the NI Act an incomplete cheque which
is subsequently filled up as to the 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.

19. The above provisions have to be read together
with Section 118 NI Act which sets out various
presumptions as to negotiable instruments. The
presumption is of 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 in 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.

20. A collective reading of the above provisions
shows that even under the scheme of the NI Act it is
possible for the drawer of a cheque to give a blank
cheque signed by him to the payee and consent

Crl. MC. 862/2017 Page 6 of 8
either impliedly or expressly to the said cheque
being filled up at a subsequent point in time and
presented for payment by the drawee. There is no
provision in the NI Actwhich either defines the
difference in the handwriting or the ink pertaining
to the material particulars filled up in comparison
with the signature thereon as constituting a
‘material alteration’ for the purposes of Section
87 NI Act. What however is essential is that the
cheque must have been signed by the drawer. If the
signature is altered or does not tally with the
normal signature of the maker, that would be a
material alteration. Therefore as long as the
cheque has been signed by the drawer, the fact that
the ink in which the name and figures are written
or the date is filled up is different from the ink of
the signature is not a material alteration for the
purposes of Section 87 NI Act.

25. In other words, merely because there is a CFSL
report that shows that the handwriting, the ink and
the time of filling the material particulars is
different from that of the signatures, that by itself
will not go to prove that the accused has
discharged his liability towards the complainant
even before the date of the presentation of the
cheques. For these reasons, there is no merit in the
prayer of the petitioner for sending the cheques to
the CFSL for the opinion of the handwriting expert.

10. The aforesaid judgments squarely cover the issue raised in the
present case. In my considered opinion there is no requirement for
obtaining the opinion of the handwriting expert as the petitioner
has clearly admitted having signed on the blank cheque and given
to the respondent. Section 20 of the NI Act permits the drawer to
fill the amount as well as the date in a blank signed cheque and

Crl. MC. 862/2017 Page 7 of 8
thus complete the inchoate instrument delivered to him. The
argument raised by the learned counsel for the petitioner that
presentation of cheques of subsequent number series prior to the
cheque in question is of no consequence nor the opinion of a
handwriting expert is required to be called for in view of the above
observations.

11. Keeping in view the above settled law and in totality of the facts
and circumstances of the case, I find no reason to interfere with the
orders passed of the Trial Court.

Crl.M.A. No. 3668/17 and 13642/17

12. In view of the above order, the applications are rendered
infructuous and the same are disposed of.

SANGITA DHINGRA SEHGAL, J.

OCTOBER 11, 2017
gr

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