Allow Cookies!
By using our website, you agree to the use of cookies
The Supreme Court has held that it is not an alteration if there is a filling of an unfilled signed cheque subsequently and even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
Justice R. Banumathi and Justice Indira Banerjee also observed that payee of the cheque and its drawer had a fiduciary relationship between them, having this kind of relationship will help it not to disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion.
The main issue considered in Bir Singh vs. Mukesh Kumar was whether the payee of a cheque is disentitled to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, of a cheque duly drawn, having been issued in discharge of a debt or other liability, only because he is in a fiduciary relationship with the person who has drawn the cheque.
After referring to various judgements on this aspect, the bench has come to observation that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. The bench further said:
"For some payment, if the payee gets voluntarily get a signed blank cheque, the payee may fill up the amount and other particulars. This aspect in itself will not make the cheque invalid. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. Based on the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, which makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debtor in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted."
Based on the aspect that there was some alteration in the cheque the High Court had acquitted the accused. Setting aside the High Court judgment, and restoring the concurrent conviction, the bench said:
“In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act."
86540
103860
630
114
59824