January 30, 2019
In this recent case, the High Court of Madras in view of issue that fell for consideration in the case delved into the question of what is execution of cheque and how can the complainant establish offence for dishonor of cheque under Section 138 of Negotiable Instrument Act, 1881.
Case name: E.Dhanuskodi vs D.Sreedhar
The Appellant in the case has challenged Lower Court’s order, whereby the Lower Court acquitted the Respondent accused for the offence of dishonor of cheque under Section 138 of Negotiable Instrument Act, 1881.
Here it would be relevant to mention that the Lower Court acquitted the Respondent on the ground that complainant has not come to Court with clean hands and that the subject cheque of the complainant was found materially altered both in figure and the ink also varied. Therefore, Court rejected the complainant’s case holding to be untrue and not credit worthy.
The High Court of Madras in view of the facts and circumstances of the case and the prevailing law on the subject upheld the Lower Court’s order of acquittal on the following grounds:
That though Section 139 of the Negotiable Instrument Act, 1881 contemplates presumption to be drawn in favour of the complainant. However, the said presumption will come to play only on the Court satisfying that the cheque was duly executed.
What is meant by Execution of Cheque?
That the execution of cheque do not mean the mere handing over of a blank cheque but it means that the cheque is given in full form. The complainant cannot be justified in doing material alteration beyond the knowledge of the accused. In other words it would be certainly unlawful if a complainant is allowed to fill up details of cheque beyond the knowledge of the accused such that filling up date and the amount in a blank cheque.
Thus firstly the complainant must allege and prove the due execution of the cheque by accused and the allegations must be established by way of evidence.
The entire case can be accessed here.