The following Hon'ble Kerela High Court ruling (Judgment of 2017) proves if the cheque details be filled by someone else when the sign is of the issuer:
Kerala High Court
Sarafudheen vs T.Muhammed Ashraf on 15 July, 2016
Author: B.Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY,
THE 15TH DAYOF JULY 2016/24TH ASHADHA, 1938
CRL.A.No. 1870 of
2009
----------------------------------------
CRL.A.NO.775/2003 OF SESSIONS COURT, THALASSERY
C.C.NO.351/2003
OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,
THALASSERY
--------------------------
PETITIONER(S)/COMPLAINANT :
-------------------------------------------------
SARAFUDHEEN, S/O.MOIDU,
SAHARA BUNGALOW, KAYYATH ROAD, KUYYALI,THALASSERY
THROUGH HIS POWER OF ATTORNEY HOLDER K.P.SHAFI,
S/O.AHAMMED, A.P.HOUSE, PARA.PO, THALASSERY.
BY ADV. SRI.CIBI THOMAS
RESPONDENT(S)/ACCUSED AND STATE :
--------------------------------------------------------------
1. T.MUHAMMED ASHRAF, S/O.MOIDU,
RESIDING AT NOOR MAHAL, NEW MAHE.P.O, THALASSERY.
2. STATE OF KERALA REP; BY PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1
BY ADV. SRI.C.K.SREEJITH
R2
BY PUBLIC PROSECUTOR SMT.MAYA
THIS
CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON
15-07-2016, THE COURT ON THE SAME DAY DELIVERED
THE
FOLLOWING:
Msd.
[CR]
B. KEMAL PASHA, J.
................................................................
Crl.
Appeal No. 1870 of 2009
...............................................................
Dated
this the 15th day of July, 2016
J U D G M E N T
Challenging the judgment of acquittal passed by the
Additional Sessions Court, Thalassery, in Crl. Appeal No.775 of 2003, the
complainant in the matter has come up in appeal. Crl. Appeal No.775 of 2003 of
the court below was filed by the accused in C.C.No.351 of 2003 of the
Additional Chief Judicial Magistrate's Court, Thalassery.
2. The case before the trial court is as a result of a private complaint filed by the appellant herein as complainant, against the 1st respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act. The complaint was filed through PW-1, who was the power of attorney holder of the complainant.
3. The case of the complainant is that the accused borrowed
an amount of 2,25,000/- from the complainant on agreeing to repay the same
within 6 months and when he demanded the repayment, the accused issued
Exhibit-P1 cheque dated 15.09.2000, which on presentation returned dishonoured
for insufficiency of funds in the accounts of the accused. The complainant
caused to issue demand notice dated 09.12.2000 to the accused under Section
138(b) of the Negotiable Instruments Act. The notice returned with the
endorsement, `out of India'.
4. The trial court recorded the evidence of PW-1 and marked
Exhibits- P1 to P5. On the side of the accused, DW-1 and DW-2 were examined and
Exhibits-D1 to D3 were marked. DW-1 is the accused and DW-2 is the elder
brother of the accused.
5. It seems that a strange contention was taken by the
appellant with regard to Exhibit-P1 cheque. It was contended that Exhibit-P1
cheque was issued by the
accused to his elder brother DW-2, when
DW-2 was an inpatient in a hospital, who was admitted for a surgery to his
lungs. It is contended that the said cheque was stolen away by the complainant
and after misusing it, the complaint was filed. Apparently, the said contention
is not believable. The trial court found that the accused has committed the
offence under Section 138 of the Negotiable Instruments Act, convicted him
thereunder and sentenced him to undergo simple imprisonment for six months and
to pay a fine of 2,50,000/-, in default to undergo simple imprisonment for
three more months.
6. The matter was taken in appeal as aforesaid. The appellate
court, through the impugned judgment, held that Exhibit-P1 is a `self cheque'
and therefore the complainant could not be treated as a holder in due course
within the meaning of Section 9 of the Negotiable Instruments Act and
therefore, the complaint as such is not maintainable.
7. The lower appellate court found that as per Section
142 of the Negotiable Instruments Act,
the court could take cognizance of an offence under Section 138 of the Negotiable
Instruments Act only on a complaint in writing made by the payee or a holder in
due course. On the said reasoning and also by relying on a stray sentence in
Exhibit- D3 deposition, allegedly made by the complainant in another case that
'there is no close acquaintance between the complainant and the accused', the
court below has chosen to pass the judgment of acquittal.
8. This is a case wherein Ext.P1 cheque was issued in the
form of a "self cheque". At the same time, it is a bearer cheque
also, since the terms "or bearer" has not been scored off. Therefore,
Ext.P1 cheque could be treated as a "bearer cheque". As per Section 9
of the N.I. Act, "holder in due course" means "any person who
for consideration became the possessor of a promissory note, bill of exchange
or cheque if payable to bearer, ........." Therefore, when Ext.P1 cheque
is a "bearer cheque", the
possessor of the cheque for
consideration can be termed as a "holder in due course". The court
below has lost sight of the fact that Ext.P1 cheque could be treated as a
"bearer cheque".
9. Apart from the above, it seems that the court below has
lost sight of the presumptions available to the complainant under Section
118(g) of the N.I. Act which says that until the contrary is proved, it shall
be presumed that the holder of a negotiable instrument is a holder in due
course. Here, admittedly, the complainant is the holder of the cheque.
According to the accused, Ext.P1 cheque was issued by him to his elder brother
DW2, while DW2 was an inpatient in a hospital, and that the said cheque was
stolen away by the complainant. Even in such case, there is clear admission
from the part of the accused that the complainant is the holder of the cheque.
Over and above it, the complainant could present the cheque before the Bank and
got it dishonoured. Therefore, when it is admitted that the
complainant is the holder of the cheque,
the presumption under Section 118(g) of the N.I.Act is available to the
complainant. It shall be presumed that the complainant being the holder of the
cheque is the holder in due course within the meaning of Section 9 of the N.I.
Act.
10. The learned counsel for the petitioner has invited the
attention of this Court to the decision in Michael Kuruvilla v. Joseph J.
Kondody[1998(1) KLT 384] wherein it was held that the non-mentioning of the
payee's name and the striking off of the words 'or bearer' in a cash cheque
will not make the cheque invalid. It was held therein that even in such case
the person who was the holder of the cheque could be a holder in due course,
who could well maintain a complaint under Section 142 of the N.I.Act.
11. Here, in this particular case, the position is much
better. The cheque is styled as a self cheque and over and above it, the term
'or bearer' has not been scored off. A similar situation as the one in this
case was dealt with by the
Madhya Pradesh High Court in Babu Lal v.
Kewal Chand [2008(1) Crimes 147(MP)] wherein also it was held that such a
complainant who was holding such a cheque could be a holder in due course, who
could maintain a complainant under Section 142 of the N.I. Act.
12. From all the above, it has clearly come out that the
lower appellate court has committed a grave error in passing the judgment of
acquittal by reversing the judgment passed by the trial court. The impugned
judgment of the lower appellate court is liable to be set aside and the
conviction entered by the trial court is only to be maintained. Regarding the
sentence, this Court is of the view that when so much time has been elapsed,
interest of justice demands the reduction in sentence of imprisonment. This
Court is of the view that a sentence of imprisonment till the rising of the
court and to pay a fine of 2,50,000/-, in default, to undergo simple
imprisonment for six months, will meet the ends of justice in this case.
In the result, this Appeal is allowed and the impugned
judgment of the lower appellate court is set aside. The conviction passed by
the trial court is maintained. The sentence imposed by the trial court is
modified as follows:
The accused is
sentenced to undergo imprisonment till the rising of the court and to pay a
fine of 2,50,000/- within three months from today, in default, to undergo
simple imprisonment for six more months.
Sd/- B. KEMAL
PASHA, JUDGE. ul/dsv/-
true copy P.S. to Judge.
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