Mohan Lal Manda vs Ganga Ram Sakh on 13 October, 2017

$~51 52
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. 2029/2016 and Crl. M. A. Nos. 8591/2016 (Stay) and
14788/2017

MOHAN LAL MANDA …..Petitioner
Through: Mr. Ashok Kumar, Advocate.

Versus

GANGA RAM SAKH ….Respondent
Through: Mr. Vishesh Verma, Advocate.

+ CRL. M.C. 2030/2016 and Crl. M. A. Nos. 8593/2016 (Stay) and
14790/2017

MOHAN LAL MANDA …..Petitioner
Through: Mr. Ashok Kumar, Advocate.

Versus

GANGA RAM SAKH ….Respondent
Through: Mr. Vishesh Verma, Advocate.

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

13.10.2017

1. These petitions have been filed under Section 482 Cr.PC assailing
the order dated 24.02.2015 passed by the Additional Chief
Metropolitan Magistrate, Karkardooma, Delhi whereby an
application under Section 45 of the Evidence Act dated 04.01.2013
and an application dated under Section 311 Cr.PC dated
22.11.2014 brought by the petitioners were dismissed and also

Crl. MC. 2029/2016 and 2030/2016 Page 1 of 8
order dated 12.10.2015 passed by Special Judge (NDPS) (N/E),
Delhi in Revision Petition No. 18/2015.

2. Brief facts necessary for disposal of the present petitions is that the
respondent herein had filed a complaint under Section 138 of
Negotiable Instrument Act on which summons were issued to the
petitioner herein; that notices were framed against the petitioner,
who denied the allegations and stated that the
respondent/complainant had stolen the cheques and misused the
same; that the matter was fixed for defence evidence and the
petitioner had summoned the bank witnesses to prove that the bank
account had already been closed and no transaction had been made
since long; that thereafter the petitioner had summoned the bank
witness of respondent’s bank to examine the bank deposit slip
regarding the deposit of the cheque in question but the original
deposit slip were not on judicial record; that an application under
Section 45 of the Evidence Act for calling a handwriting and finger
print expert to give his expert opinion, was made; that another
application under Section 311 Cr.PC for recalling the bank witness
of the respondent to bring the original record was moved; that vide
impunged order dated 24.02.2015, both aforesaid applications were
dismissed; that the petitioner filed a Revision Petition against the
said order which was dismissed vide impugned order dated
12.10.2015.

3. The main contention of learned counsel for the petitioner is that the
cheque was never issued by the petitioner to the respondent and the
same was stolen and misused by the respondent. Learned counsel

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contended that opinion of the handwriting and finger print expert to
prove the handwriting and signature on the cheque in question was
necessarily required and the Trial Court having rejected his prayer
resulted in miscarriage of justice.

4. On the other hand, learned counsel for the respondent supporting
the impugned orders argued that there is no merit in the
applications under Section 45 of Evidence Act and under Section
311 Cr.PC and the impugned orders dismissing the said
applications do not suffer from any illegality and hence, no
interference is required by this Court.

5. I heard the learned counsel for parties and perused the material
available on record.

6. Respondent/complainant filed a case under Section 138 of
Negotiable Instrument Act for discharge of a cheque dated
26.10.2004 for Rs.3,00,000/-. Notice of accusation was framed
against the petitioner who denied his liability of cheque in question
and submitted that his signed cheque was stolen and misused by
the respondent. The petitioner pleaded not guilty and claimed trial.
Bank officials being DW1 and DW2 were examined to prove the
fact that the account was maintained by the petitioner in State Bank
of India, Chawri Bazar, Delhi and the cheque deposit slip with
Punjab National Bank, Vivek Vihar, Delhi. The petitioner
thereafter moved an application under Section 45 of the Evidence
Act for summoning the handwriting expert to give his opinion
about the signature of the complainant on the cheque in question
and thereafter moved another application under Section 311 Cr.PC

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for summoning the original cheque deposit slip dated 16.04.2005 in
respect of the cheque in question from Punjab National Bank,
Vivek Vihar, Delhi for comparison of the handwriting of the
cheque deposit slip with the handwriting and signatures on the
cheque in question.

7. 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],
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.”

8. 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

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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.”

9. 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
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.”

10. 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

Crl. MC. 2029/2016 and 2030/2016 Page 5 of 8
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
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

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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
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

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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.

11. As per record, the substance of accusation was framed on
29.04.2006. The petitioner did not dispute his signatures on the
cheque in question. The plea taken by the petitioner that the
cheque had been stolen stands belied from the fact that he failed to
get a police report lodged about the stolen cheque nor informed the
bank to stop payment of the same. Moreover, strangely enough,
the petitioner moved the applications under Section 45 of the
Evidence Act and Section 311 Cr.PC after 7 years of framing of
substance of accusation.

12. Keeping in view the facts and circumstances of the present case, I
find that the impugned orders do not call for any interference by
this Court and the petitions being devoid of any merits are
dismissed along with pending application.

SANGITA DHINGRA SEHGAL, J.

OCTOBER 13, 2017
gr

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