TMI Blog2005 (1) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 357(3) of Cr.P.C. or in default to undergo S.I. for a period of one month. 4. The case of the complainant, in brief, was that the accused owed the complainant Rs.60,000/- and when the complainant demanded the said sum, the accused issued a cheque dated 26.4.02 for the said amount of Rs.60,000/- drawn on the State Bank of India, which when presented for encashment, in the Canacona branch of the State Bank of India was returned dishonored, for want of sufficient funds. The complainant therefore served a notice upon the accused which the accused received and replied, and, for want of compliance with the said notice, the complainant filed the said complaint, prosecuting the accused under S.138 of the Act. 5. The accused in the course of the proceedings took up several defences, one of them being that the said cheque was stolen by the wife of the complainant. The other was that when the accused was sick and when the family members of the accused were absent from the house, the said wife of the complainant took away the said cheque without the consent of the accused from her house with an illegal motive. It was also the case of the accused that the said cheque was lost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (2) DCR 610) . 7. Section 9 of the Act defines 'holder in due course' to mean a person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. Section 20 of the Act deals with inchoate stamped instruments, and, states that where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haskaran Chandrasekharan v. Radhakrishnan (1998 (1) KLT 881) held that when a cheque is issued for consideration and there is no dispute regarding signature, amount and name, it cannot be said that by putting a date on the cheque by the payee who is the holder of the cheque in due course would amount to material alteration rendering the instrument void. When a cheque is admittedly issued with blank date, and when the drawer has no objection with regard to he name, amount and signature, it can be presumed that there is an implied consent for putting the date as and when required by the payee and get it encashed unless the contrary is proved. The burden is entirely on the drawer of the cheque to establish that the payee had no authority to put the date and amount and then encash the cheque. There are instances where blank cheques are issued to the payee. If any amount is due to the payee from the drawer of the cheque and that amount is shown in the cheque which is admittedly signed by the drawer, the presumption could be drawn that the cheque has been validly issued. An implied consent can be presumed in such a situation. Once a cheque is drawn by a person on an account maintained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d signed the cheque and handed over the same to the complainant, to present it for payment. With the handing over of the said cheque, the complainant received the same with all presumptions available under the Act and it was for the accused to rebut the said presumption particularly the presumption available to the complainant under S.139 of the Act which the accused failed to rebut. In fact, when the notice of demand was sent by the complainant to the accused, the accused did not at all refer to either the cheque or the money which the accused had borrowed from the complainant, but on the contrary the accused sent a reply dated 17.5.02 stating that she could not disclose many of the things at that point of time and she would disclose them all in the Court when the complainant would file the complaint in Court. However, the fact remains that the accused led no evidence in support of the several pleas taken by her and therefore both the Courts below were wholly justified in drawing the presumption available to the complainant under S.139 of the Act that the complainant had received the cheque in the discharge of debt which the accused owed to the complainant. 13. From the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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