In the said context, the learned trial court has rightly observed thus:
" Section 20 of the Negogiable Instruments Act, 1881, states that when a person signs and delivers blank cheque to another, he thereby gives prima facie authority to holder thereof to make or
complete it for any amount specified therein and not exceeding the amount covered by stamp. After perusal of said section 20, it appears that the drawer of a cheque can issue blank cheque to other person and by his said act he gives an authority to said concern person to fill up its contents. After combine reading of said section 20 and 138 of the "Act" it appears that to made out an offence in question against the accused, the necessary ingredient is that the cheque should be drawn on the account of drawer and it is immaterial the contents therein are in whose handwriting as per section 20 of the "Act"".
Bombay High Court
Simratmal S/O. Hiralal Gandhi vs Kedarnath S/O. Badrinarayan Bang on 1 August, 2011
Bench: Shrihari P. Davare
1. Heard Adv. Mr. V.S. Bedre, for the applicant; Adv. Mr. L.B. Pallod, for respondent no.1, and Adv. Mr. V.S. Badakh, for respondent no.3.
2. None for respondent nos.2 and 4, although served.
3. Rule. Rule made returnable forthwith. With the consent of learned Counsel for parties, taken up for final hearing.
4. By the present application preferred by the applicant (original accused) under Section 482 of the Code of Criminal Procedure, 1973, prayed that the order passed by the learned 6th (3)
Joint Civil Judge (Senior Division) & Judicial Magistrate (F.C.), Ahmednagar, on Exhibit 48, in Summary Trial Case No. 5065/2007, dated 31st October 2009, be quashed and set aside.
5. The applicant herein is the original accused no.2 and the respondent no.1 herein is the original complainant. It is contended that as there were close friendly relations between the applicant and respondent no.1, and since the applicant was in need of amount, the complainant i.e. respondent no.1 herein paid the amount of Rs. 50,000/- by way of hand loan. It is further contended that the accused had given cheque of Rs. 50,000/- on 20-5-2007 to the complainant. The complainant presented the said cheque for encashment purpose. However, same was dishonoured and returned unpaid with the endorsement of closure of account. Hence, the complainant issued notice to the accused persons on 30-8-2007 which was received by them on or about 5-9-2007 and 7-9-2007. However, inspite of the receipt of the said notice, accused failed to pay the cheque amount to the complainant. Hence, the complainant filed complaint under Section 138 of the Negotiable Instruments Act, 1881, against the accused.
6. It is the contention of the accused that the complainant misused the cheque which was misplaced and contended that (4)
there are material alterations in the cheque. Hence, the accused preferred an application Exhibit 48 before the learned trial court on 26-10-2009 stating therein that he has grievance about handwriting of the cheque, and therefore, requested the learned trial court to send the said cheque to the handwriting expert and call for the report in respect of name and date on the said cheque. The complainant opposed the said application by filing his say, and submitted that there is no suggestion in the cross examination conducted by the accused in respect of the prayer in the said application. It is also contended in the said reply by the complainant, that the said application was preferred by the accused at the belated stage and after recording statement of the accused under Section 313 of the Code of Criminal Procedure, 1973. It is pointed out in the said say, that there is no reasonable cause to allow the said application and there are no bona fides of the accused reflected in the said application, and the said application was preferred by the accused just to protract the proceeding. Considering the contents of the said application preferred by the accused, as well as, contents of the reply filed by the complainant, and also considering rival submissions advanced by the learned Counsel for the parties, learned trial court rejected the said application by order dated 31st October 2009. Being aggrieved and dissatisfied by the said order, the accused i.e. applicant herein has preferred the present Application (5)
for the prayers as set out herein above.
7. On perusal of the copy of the application dated 26th October 2009, preferred by the applicant herein i.e. original accused before the learned trial court, it is apparent that the grievance of the accused was in respect of the handwriting on the said cheque, more particularly, as regards, the name and date on the said cheque and not beyond that. At this juncture, it is significant to note that there is no grievance of the accused in respect of the signature on the said cheque. The complainant rightly objected to the said application stating that there was no suggestion in the cross examination of the complainant conducted by the accused in respect of the grievance made in the said application and the said application was preferred by the accused at the belated stage i.e. after recording statement of the accused under Section 313 of the Code of Criminal Procedure.
8. In the said context, the learned trial court has rightly observed thus:
" Section 20 of the Negogiable Instruments Act, 1881, states that when a person signs and delivers blank cheque to another, he thereby gives prima facie authority to holder thereof to make or (6)
complete it for any amount specified therein and not exceeding the amount covered by stamp. After perusal of said section 20, it appears that the drawer of a cheque can issue blank cheque to other person and by his said act he gives an authority to said concern person to fill up its contents. After combine reading of said section 20 and 138 of the "Act" it appears that to made out an offence in question against the accused, the necessary ingredient is that the cheque should be drawn on the account of drawer and it is immaterial the contents therein are in whose handwriting as per section 20 of the "Act"".
Accordingly, learned trial court has rightly rejected the said application, after making the above observations.
9. In the circumstances, considering factual, as well as, legal position, it is amply clear that there is no substance in the present application and the prayers made by the applicant / accused therein, and there is no glaring defect in the impugned order passed by the learned trial court, and hence, no interference is called for therein, by exercising inherent powers of this Court under Section 482 of the Code of Criminal Procedure, and (7)
therefore, present Criminal Application deserves to be rejected.
10. In the result, present Criminal Application stands dismissed, and Rule is discharged accordingly.
( SHRIHARI P. DAVARE )
JUDGE
.........................
bgp/ka25
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