Since no hearing was given to the appellant resulting in non compliance of Section 5A of the LA Act, the declaration under Section 6 of the LA Act dated 24/10/1997 published in the Government Gazette on 29/10/1997 must be set aside and is set aside.

                                                       REPORTABLE   




               IN THE SUPREME COURT OF INDIA




                CIVIL APPELLATE JURISDICTION 








            CIVIL APPEAL NO.  10878  OF 2011


 [Arising out of Special Leave Petition (Civil) No.3654 of 2010]








M/S. KAMAL TRADING PRIVATE LIMITED


(NOW KNOWN AS MANAV INVESTMENT


& TRADING CO. LTD.)                             ...


      APPELLANT




                                Versus




STATE OF WEST BENGAL


& ORS.                                    ...           RESPONDENTS








                             JUDGMENT








(SMT.) RANJANA PRAKASH DESAI, J.








1.    Leave granted.










2.    This   appeal,   by   grant   of   special   leave,   is   directed 




against the judgment and order dated 19/8/2009 passed by 



                                     2






the High Court at Calcutta dismissing the appeal filed by the 




appellant. 










3.    The appellant, which is a private limited company was 




entrusted by seventeen joint owners of the premises known 




as "Industry House" at No.10, Camac Street, Calcutta - 700 




017 (for short, "the said premises"), to look after the day-




to-day  management  and  maintenance  of the said  premises 




as also to initiate proceedings for and on their behalf.   The 




seventeen   joint   owners   include   respondents   6,   7   and   8 




herein and one Pilani Investment (hereinafter referred to as 




"owner companies" for convenience).  They are seized and 




possessed of certain floors of the said premises.   The State 




of   West   Bengal   requisitioned   the   said   floors   under   the 




provisions   of   the   West   Bengal   Premises   Requisition   and 




Control   (Temporary   Provision)   Act,   1947   (for   short,   "the 




1947  Act").   Under the 1947  Act,  the maximum  period  of 




requisition   was   fixed   at   25   years   from   the   date   of   initial 




order  of requisition  and  the  State Government  was  obliged 



                                       3






to release  the property under requisition after expiry of 25 




years.     It   is   the   case   of   the   appellant   that,   in   fact,   the 




release   of   the   said   floors   was   in   contemplation   of   the 




concerned   authorities.     However,   enquiries   made   by   the 




appellant revealed that the State Government was planning 




to acquire the said premises in exercise of its powers under 




the   Land   Acquisition   Act,   1894   (for   short,   "the   LA   Act"). 




The   appellant   along   with   owner   companies,   therefore,   filed 




Writ   Petition   No.22859   (W)   of   1997   praying   for   a   writ   of 




mandamus directing the State to release the said floors from 




requisition. 










4.    Instead of releasing the said floors from requisition, the 




State   Government   issued   a   notification   dated   29/7/1997 




under Section 4 of the LA Act stating, inter alia, that the said 




floors are needed for the public purpose viz. for permanent 




office accommodation of Public Works Department.  The said 




notification   was   published   in   the   Government   Gazette   on 




12/8/1997.     It  is   the  case   of   the  appellant   that   the   owner 



                                     4






companies   raised   objections   vide   letter   dated   8/9/1997 




under   Section   5A   of   the   LA   Act.     The   Second   Land 




Acquisition Officer issued notice dated 23/9/1997 fixing date 




of hearing of the objections on 26/9/1997.  On receipt of the 




said   notice,   the   representative   of   the   appellant   met   the 




Second   Land   Acquisition   Collector   on   25/9/1997   and   by 




letter   of   even   date,   requested   that   the   hearing   fixed   on 




26/9/1997   be   postponed   till   after   29/9/1997   because   the 




Constituted Attorney of the appellant was held up in Mumbai 




and   was   unable   to   attend   the   hearing.     The   Second   Land 




Acquisition Collector issued another notice dated 26/9/1997 




fixing   the   date   of   hearing   of   the   objections   on   30/9/1997. 




By letter dated 29/9/1997, the appellant again requested for 




adjournment   till   after   28/10/1997   on   the   ground   that   its 




Constituted Attorney was unable to attend and the advocate 




was   out   of   station.     According   to   the   appellant,   while   they 




were   waiting   for   further   communication   about   the   date   of 




hearing,   the   State   Government   issued   a   declaration   dated 




24/10/1997   under   Section   6   of   the   LA   Act,   which   was 



                                     5






published   in   the   Gazette   on   29/10/1997.     In   the   said 




declaration, it was stated that the Government was satisfied 




that the said floors were needed for the public purpose.  The 




Special   Land   Acquisition   Officer   did   not   accept   the 




appellant's   request   for   further   adjournment   and   proceeded 




to submit report dated 30/9/1997.










5.    The   appellants   along   with   the   owner   companies   filed 




Writ Petition No.25632(W) of 1997 and prayed for quashing 




notifications dated 29/7/1997.  One of the grounds taken by 




them   was   that   the   report   submitted   by   the   Second   Land 




Acquisition Officer was vitiated due to violation of the rule of 




hearing   enshrined   in   Section   5A(2)   of   the   LA   Act   and   non 




application   of   mind   by   the   concerned   officer   to   the 




objections filed under Section 5A(1) of the LA Act.










6.    By an order dated 3/12/2003, the learned Single Judge 




dismissed both the writ petitions.   FMA No.40 of 2004 filed 




by   the   appellant   against   dismissal   of   Writ   Petition 



                                      6






No.25632(W) of 1997 was dismissed by the Division Bench. 




Hence, this appeal by special leave.










7.    We   have   heard   Dr.   Singhvi,   learned   senior   counsel 




appearing   for   the   appellant   and   Mr.   Chaudhari,   learned 




senior counsel appearing for the contesting respondents, at 




some   length.     Though   several   points   are   raised   in   this 




appeal, Dr. Singhvi addressed us on violation of Section 5A 




of the LA Act as according to him, this point goes to the root 




of the matter.  










8.    Dr. Singhvi submitted that hearing contemplated under 




Section   5A   of   the   LA   Act   is   not   an   empty   formality.     He 




submitted that the said right has been raised to the level of 




a fundamental  right  by this  Court.     Learned  senior   counsel 




argued   that   the   acquisition   of   the   land   is   a   serious   matter 




and   when   the   State   decides   to   deprive   a   person   of   his 




property by taking recourse to LA Act, it is bound to afford 




him an opportunity to file objections under Section 5A(1) of 



                                     7






the LA Act and of being heard by the Collector in terms of 




Section   5A(2)   of   the   LA   Act.     Learned   senior   counsel   then 




submitted that the Second Land Acquisition Officer wrongly 




rejected   the   genuine   prayer   made   by   the   appellant   vide 




letter   29/9/1997   for   adjournment   on   the   ground   that   the 




counsel   was   out   of   station.     He   argued   that   even   if   the 




concerned   officer   was   not   inclined   to   adjourn   the   case,   he 




was   duty   bound   to   consider   the   objections   raised   by   the 




appellant   with   necessary   seriousness   and   decide   the   same 




by assigning reasons.   Dr. Singhvi submitted that although 




the   report   of   the   Second   Land   Acquisition   Officer   makes   a 




mention   of   the   objections   raised   by   the   appellant,   but   the 




same have not at all  been dealt with and, thus,  the report 




made   by   the   Second   Land   Acquisition   Officer,   which 




contained   recommendations   for   the   acquisition   of   land 




suffers from the vice of non application of mind.  In support 




of his submissions, Dr. Singhvi relied upon the judgments of 




this   Court   in  U
                        nion   of   India     v.     Mukesh   Hans1
                                                                           ,   






1 (2004) 8 SCC 14



                                          8






Hindustan   Petroleum   Corporation   Ltd.     v.     Darius  




Shapu
           r   Chenai   &   Ors.2
                                   ,  
                                     Dev   Saran   v.     State   of   Uttar  




Pr
   adesh3
                , R
                       adhy Shyam V. State of Uttar Pradesh4
                                                                       .










9.              Mr.   Chaudhary,   learned   senior   counsel   for   the 




respondents argued that the Second Land Acquisition Officer 




did   not   commit   any   illegality   by   declining   the   appellant's 




request   for   adjournment   because   the   sole   object   of   such 




request   was   to   delay   finalization   of   the   acquisition 




proceedings.  Learned senior counsel emphasized that if the 




counsel   for   the   appellant   was   not   available   on   30/9/1997, 




i.e.,   the   date   to   which   the   hearing   was   adjourned   by   the 




Second   Land   Acquisition   Officer,   the   appellant   should   have 




made alternative arrangement and the concerned officer did 




not commit any error by declining the repeated request for 




adjournment   made   on   its   behalf.     Mr.   Chaudhary   then 




submitted   that   the   report   submitted   by   the   Special   Land 




Acquisition   Officer   does   not   suffer   from   the   vice   of   non 




2 (2005) 7 SCC 627


3 (2011) 4 SCC 769


4 (2011) 5 SCC 553



                                     9






application   of   mind   because   he   had   duly   considered   the 




objections   raised   by   the   appellant.     In   support   of   his 




argument,   he   relied   upon   the   judgment   of   this   Court   in 




Jayabheri Properties Private Limited & Ors.   v.   State  




of
     Andhra   Pradesh   &   Ors.5
                                              where   according   to   him,   a 




similar   contention   raised   by   the   appellants   therein   was 




rejected on the ground that adequate opportunity had been 




given   to   the   appellants   to   voice   their   objections   and   the 




objections   were   duly   considered   by   the   Special   Deputy 




Collector.  Counsel submitted that in the circumstances, the 




appeal may be dismissed. 










10.     Section 5A(1) of the LA Act gives a right to any person 




interested in any land which has been notified under Section 




4(1)   as   being   needed   or   likely   to   be   needed   for   a   public 




purpose   to   raise   objections   to   the   acquisition   of   the   said 




land.  Sub-section (2) of Section 5A requires the Collector to 




give the objector an opportunity of being heard in person or 




by   any   person   authorized   by   him   in   this   behalf.     After 


5 (2010) 5 SCC 590



                                     1






hearing   the   objections,   the   Collector   can,   if   he   thinks   it 




necessary,   make   further   inquiry.     Thereafter,   he   has   to 




make a report to the appropriate Government containing his 




recommendations on the objections together with the record 




of   the   proceedings   held   by   him   for   the   decision   of   the 




appropriate Government and the decision of the appropriate 




Government   on   the   objections   shall   be   final.   It   must   be 




borne   in   mind   that   the   proceedings   under   the   LA   Act   are 




based on the principle of eminent domain and Section 5A is 




the   only   protection   available   to   a   person   whose   lands   are 




sought to be acquired.  It is a minimal safeguard afforded to 




him  by law  to  protect  himself  from   arbitrary  acquisition  by 




pointing out to the concerned authority, inter alia, that the 




important ingredient namely `public purpose' is absent in the 




proposed acquisition or the acquisition is mala fide.  The LA 




Act   being   an   ex-proprietary   legislation,   its   provisions   will 




have to be strictly construed. 






11.    Hearing contemplated under Section 5A(2) is necessary 




to enable the Collector to deal effectively with the objections 



                                     1






raised against the proposed acquisition and make a report. 




The report of the Collector referred to in this provision is not 




an empty formality because it is required to be placed before 




the   appropriate   Government   together   with   the   Collector's 




recommendations   and   the   record   of   the   case.     It   is   only 




upon   receipt   of   the   said   report   that   the   Government   can 




take a final decision on the objections. It is pertinent to note 




that declaration under Section 6 has to be made only after 




the appropriate Government is satisfied on the consideration 




of   the   report,   if   any,   made   by   the   Collector   under   Section 




5A(2).    As   said   by   this   Court   in  Hindustan   Petroleum  




Limited,   the   appropriate   Government   while   issuing 




declaration under Section 6 of the LA Act is required to apply 




its mind not only to the objections filed by the owner of the 




land in question, but also to the report which is submitted by 




the Collector upon making such further inquiry thereon as he 




thinks   necessary   and   also   the   recommendations   made   by 




him in that behalf.    Sub-section  (3) of Section 6 of the LA 




Act makes a declaration under Section 6 conclusive evidence 



                                    1






that the land is needed for a public purpose.    Formation of 




opinion by the appropriate Government as regards the public 




purpose must be preceded by application of mind as regards 




consideration   of  relevant   factors   and   rejection   of   irrelevant 




ones.   It is, therefore, that the hearing contemplated under 




Section   5A   and   the   report   made   by   the   Land   Acquisition 




Officer and his recommendations assume importance.   It is 




implicit   in   this   provision   that   before   making   declaration 




under Section 6 of the LA Act, the State Government must 




have the benefit of a report containing recommendations of 




the Collector  submitted  under Section  5A(2)  of the LA  Act. 




The recommendations must indicate objective application of 




mind.  








12.    We   may   make   a   brief   reference   to   the   judgments   on 




which   reliance   has   been   placed   by   Dr.   Singhvi,   which 




support the view taken by us. 



                                             1






13.     In M
                  unshi Singh v.  Union of India6
                                                                , this Court while 




dealing with Section 5A of the LA Act observed as under :










                     "7.    Section   5-A   embodies   a   very   just   and  


                     wholesome   principle   that   a   person   whose  


                     property   is   being   or   is   intended   to   be  


                     acquired   should   have   a   proper   and  


                     reasonable   opportunity   of   persuading   the  


                     authorities   concerned   that   acquisition  of  the  


                     property belonging to that person should not  


                     be   made.   ...     The   legislature   has,   therefore,  


                     made   complete   provisions   for   the   persons  


                     interested   to   file   objections   against   the  


                     proposed   acquisition   and   for   the   disposal   of  


                     their   objections.     It   is   only   in   cases   of  


                     urgency   that   special   powers   have   been  


                     conferred on the appropriate Government to  


                     dispense with the provisions of Section 5-A."








14.     In Om Pr
                            akash v.  State of Uttar Pradesh7
                                                                        , referring 




to   its   earlier   judgment   in  State   of   Punjab     v.     Gurdial  




Singh
          8
            , this Court raised the right under Section 5A of the 




LA Act to the level of fundamental  right and observed that 




inquiry under Section 5A is not merely statutory but also has 




a flavour of fundamental rights under Articles 14 and 19 of 








6 (1973) 2 SCC 337


7 (1998) 6 SCC 1


8 (1980) 2 SCC 471



                                    1






the Constitution though right to property has now no longer 




remained   a   fundamental   right,   at   least,   observation 




regarding Article 14 vis-`-vis Section 5A of the LA Act would 




remain apposite. 










15.    In  Mukesh   Hans,   this   Court   reiterated   that   right   of 




representation   and   hearing   contemplated   under   Section   5A 




is a very valuable right of a person whose property is sought 




to   be   acquired   and   he   should   have   appropriate   and 




reasonable   opportunity   of   persuading   the   concerned 




authorities that the acquisition of the property belonging to 




that person should not be made.  This court further held that 




the right given to an owner/person interested under Section 




5A to object to the acquisition proceedings is not an empty 




formality and is a substantive right which can be taken away 




for   good   and   valid   reason   and   within   the   limitations 




prescribed under Section 17(4) of the LA Act. 



                                      1






16.    In  Hindustan   Petroleum   Corporation,   this   Court 




again referred to  Om Prakash  and observed that it is trite 




that hearing given to a person must be an effective one and 




not a mere formality.  This Court observed that formation of 




opinion   as   regards   the   public   purpose   as   also   suitability 




thereof must be preceded by application of mind as regards 




consideration   of  relevant   factors   and   rejection   of   irrelevant 




ones.     This   Court   further   observed   that   the   State   in   its 




decision-making process must not commit any misdirection 




in law.   This Court observed that it cannot be disputed that 




Section 5A of the LA Act confers a valuable important right 




and having regard to the provisions contained in Article 300-




A   of   the   Constitution,   it   has   been   held   to   be   akin   to   a 




fundamental right.  Pertinently, this Court made it clear that 




in   a   case   where   there   has   been   total   non-compliance   or 




substantial non-compliance with the provisions of Section 5A 




of the LA Act, the Court cannot fold its hands and refuse to 




grant relief to the appellant.  Again in Dev Saran, this Court 




reiterated the same view. 



                                     1










17.    In  Radhy   Shyam,   this   Court   was   considering   a   case 




where the State had invoked urgency clause under Section 




17(4)   and   dispensed   with   inquiry   under   Section   5A.     This 




Court   observed   that   the   legislation   which   provides   for 




compulsory acquisition of the private property by the State 




falls   in   the   category   of   ex-propriatory   legislation   and   such 




legislation   must   be   construed   strictly.     The   property   of   a 




citizen   cannot   be   acquired   by   the   State   without   complying 




with the mandate of Sections, 4, 5A and 6 of the LA Act.  










18.    The   decision   of   this   Court   in  Jayabheri  on   which 




counsel for the respondent has placed reliance does not take 




any contrary view.   The   Court   had   adverted   to   the   facts   of 




that   case   and   concluded   that   there   was   no   violation   of 




Section 5A of the LA Act.








                                      1






19.    According to the appellant, notification under Section 4 




of   the   LA   Act   was   not   served   on   owner   companies. 




However,   upon   coming   to   know   of   this   notification,   the 




appellant   vide   their   letter   dated   8/9/1997   submitted 




objections running into four pages containing 8 paragraphs. 




We   have   already   noted   that   the   Second   Land   Acquisition 




Officer adjourned the hearing on one occasion as requested 




by   the   appellant.     He,   however,   refused   to   adjourn   the 




matter   any   further.     The   second   request   was   rejected.   We 




feel   that   looking   to   the   nature   of   the   issues   involved,   the 




Second   Land   Acquisition   Officer   could   have   adjourned   the 




proceedings   after   putting   the   appellant   to   terms   because 




hearing   the   representative   of   the   owner   companies   was 




mandatory.  In any event, if he did not want to adjourn the 




proceedings   and   wanted   to   consider   the   objections   in   the 




absence of counsel for the owner companies and assuming 




such   a   course   is   permissible   in   law,   he   should   have   dealt 




with the objections carefully and not in such a lighthearted 




manner   because   heavy   responsibility   rested   on   his 



                                     1






shoulders.     In   the   report,   he   has   noted   the   objections   as 




under:










       "(i)     Notification U/S 4 has not been published  


                in the Newspapers nor publicly notified. 




       (ii)     Premise   is   under   requisition   under   the   W  


                Bengal   Premises   Requisition   &   Control  


                (Temporary   Provisions)   Act,   1947   from  


                16/09/72   and   is   about   to   complete   25  


                years   on   15/09/97   when   as   per   the   Law  


                release of the premises is expected. 




       (iii)    Anticipating impending release, tie-up has  


                been   made   to   accommodate   foreign  


                ventures/industrialists. 




       (iv)     LA Collector has shown colourful authority  
                by extending this acquisition proceeding." 










20.    He   has   then   noted   that   the   officers   of   the   Acquiring 




Body vehemently protested against the statements made in 




the appellant's letter and stated that the said statements are 




false, arbitrary and groundless and they simply endeavour to 




oust   the   Acquiring   Body   by   hook   or   by   crook.     The 




paragraphs which contain the submissions and the so-called 



                                       1






reasons   of   the   Second   Land   Acquisition   Officer   need   to   be 




quoted. 










        "Heard   the   officers   present   from   the  


        Requiring   Body.               They   vehemently  


        protested   as   regards   the   statements  


        contained   in   this   particular   letter.     Their  


        submissions   in   short   that   the   statements  


        made by the interested persons are all fake,  


        arbitrary   and   groundless.     They   simply  


        endeavour   to   oust   the   Requiring   Body   by  


        hook   or   crook   in   order   to   grab   this   office  


        space   so   that   in   turn   can   realize   higher  


        rent.  Further, the purpose of the Requiring  


        Body is very much public oriented and if it  


        is   no   acquired   they   will   suffer   immensely.  


        They   further   submitted   that   acquisition  


        proceeding   to   be   completed   as   quickly   as  


        possible   inasmuch   as   they   have   the   time  


        bound   programmes   to   implement   it   as   per  


        guidelines   of   Government   for   the   greater  


        interest of public.




        In   view   of   these   circumstances   and   for  


        greater   interest   of   the   public,   the  


        submissions   made   by   the   interested  


        persons   by   their   letter  dated  8/9/1997   are  


        overruled." 










21.    By   no   stretch   of   imagination,   it   can   be   said   that   the 




Second Land Acquisition Officer had applied his mind to the 



                                      2






objections   raised   by   the   appellant.     The   above-quoted 




paragraphs are bereft of any recommendations.  The Second 




Land Acquisition Officer has only reproduced the contentions 




of the officers of the Acquiring Body.   The objections taken 




by   the   appellants   are   rejected   on   a   very   vague   ground. 




Mere   use   of   the   words   `for   the   greater   interest   of   public' 




does not lend the report the character of a report made after 




application of mind.   Though in our opinion, the declaration 




under Section 6 of the LA Act must be set aside because the 




appellant   was   not   given   hearing   as   contemplated   under 




Section   5A(2)   of   the   LA   Act,   which   is   the   appellant's 




substantive   right,   we   must   record   that   in   the   facts   of   this 




case, we are totally dissatisfied with the report submitted by 




the   Second   Land   Acquisition   Officer.     His   report   is   utterly 




laconic   and   bereft   of   any   recommendations.   He   was   not 




expected to write a detailed report but, his report, however 




brief, should have reflected application of mind.  Needless to 




say that as to which report made under Section 5A(2) could 




be   said   to   be   a   report   disclosing   application   of   mind   will 



                                     2






depend on the facts and circumstances of each case. 










22.     Having examined this case, in the light of the law laid 




down   by   this   Court,   we   are   of   the   opinion   that   the   High 




Court  wrongly   rejected   the   prayer   made   by   the   appellant 




that   the  notification  under  Section  4  and  declaration  under 




Section   6   of   the   LA   Act   be   quashed   and   set   aside.     The 




impugned judgment and order of the High Court, therefore, 




needs to be set aside and is, accordingly, set aside.     Since 




no   hearing   was   given   to   the   appellant   resulting   in   non 




compliance   of   Section   5A   of   the   LA   Act,   the   declaration 




under Section 6 of the LA Act dated 24/10/1997 published in 




the Government  Gazette on 29/10/1997  must  be  set aside 




and is set aside.  In view of the judgment of the Constitution 




Bench of this Court in Padma Sundara Rao (Dead) & Ors  




v.
     State of T.N. & Ors9
                                , the State Government cannot now 




rely   upon   notification   dated   29/7/1997   for   the   purposes   of 




issuing   fresh   declaration   under   Section   6(1)   of   the   LA   Act. 




The said notification dated 29/7/1997 issued under Section 


9 (2002) 3 SCC 533



                                    2






4 is also, therefore, set aside.   It would be, however, open 




to   the   State   Government   to   initiate   fresh   land   acquisition 




proceedings in accordance with law if it so desires.










23.    We   make   it   clear   that   nothing   said   by   us   in   this 




judgment should be treated as expression of our opinion on 




the merits of the case of either side.










24.    The appeal is disposed of in the aforestated terms. 










                                     .....................................................J.


                                               (G.S. SINGHVI)








                                     .....................................................J.


                                         (RANJANA PRAKASH DESAI)




NEW DELHI,


DECEMBER 13, 2011.

While it is correct that in terms of the above provision, any material alteration to a cheque without the consent of the drawer unless it is made to carry out the common intention of the original parties thereto renders the cheque void, the expression “material alteration” has not been defined. Significantly, Section 87 has been made subject to Sections 20, 49, 86 and 125 NI Act. These provisions help us to understand what are not considered „material alterations‟ for the purpose of Section 87. 18. Section 20 NI Act talks of “inchoate stamped instruments” and states that if a person signs and delivers a paper stamped in accordance with the law and “either wholly blank or have written thereon an incomplete negotiable instrument” such person 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.” Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument “by writing upon the endorsement, a direction to pay any other person as CRL.M.C. Nos. 5211, 5217 & 5291/2006 Page 11 of 20 endorsee and to complete the endorsement into a blank cheque, it makes it clear that by doing that the holder does not thereby incurred the responsibility of an endorser.” Likewise Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment. These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course.

CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 1 of 20
IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI
CRL.M.C. 5211/2006, CRL.M.C. 5217/2006 CRL.M.C. 5291/2006
21. CRL.M.C. 5211/2006 & CRL. M.A. No.8864/2006
Date of order : 13
th
March, 2008
RAVI CHOPRA                                     ..... Petitioner
Through:Mr. Sudhir Nandrajog, Advocate with 
Mr. Ujjwal K. Jha, Advocate
versus
STATE & ANOTHER                               ..... Respondents   
Through: Ms. Amrit Kaur Oberoi, Advocate           
for respondent No.2.                                            
Mr. Pawan Behl, APP
   WITH
22. CRL.M.C. 5217/2006 &   CRL. M.A. No.8877/2006
RAVI CHOPRA                           ..... Petitioner
Through:Mr. Sudhir Nandrajog, Advocate with 
Mr. Ujjwal K. Jha, Advocate
versus
STATE & ANOTHER                                       ..... Respondents
Through: Ms. Amrit Kaur Oberoi, Advocate      
for respondent No.2.                                                  
Mr. Pawan Behl, APP
AND
23. CRL.M.C. 5291/2006 & CRL. M.A. No.8961/2006
RAVI CHOPRA                           ..... Petitioner
Through:Mr. Sudhir Nandrajog, Advocate with 
Mr. Ujjwal K. Jha, Advocate
versus
STATE & ANOTHER                           ..... Respondents
Through: Ms. Amrit Kaur Oberoi, Advocate 
                               for respondent No.2.
Mr. Pawan Behl, APPCRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 2 of 20
          O R D E R
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1.       Whether Reporters of local papers may be 
allowed to see the judgment?                                 Yes
2.       To be referred to the Reporter or not?                       Yes
3.       Whether the judgment should be reported  Yes
in Digest?                              
                      
Dr. S. Muralidhar, J (open court)
1. These petitions under Section 482 of the Code of Criminal Procedure, 
1973 („CrPC‟) seek to challenge an order dated 18
th
July, 2006 passed by the 
learned Metropolitan Magistrate („MM‟) rejecting an application filed by the 
Petitioner for sending the dishonoured cheques, in respect of which the 
complaint cases were filed against the Petitioner for the offences under 
Section 138 of the Negotiable Instruments Act, 1881 („NI Act‟), to the 
Central Forensic Science  Laboratory („CFSL‟) for its opinion on the 
handwriting on the cheques.
2. The cheques in question are Nos. 836720, 445534 and 752076 all dated 1
st
May, 2004 for a sum of Rs. 1 lakh each in respect of which Complaint Case 
No. 339 of 2004 was filed, Nos. 328114 dated 11
th
May, 2004 for a sum of 
Rs.2 lakhs and No.  520660 dated 11
th
May, 2004 for a sum of Rs.1 lakh in 
respect of which Complaint Case No. 340 of 2004 was filed, and Nos. 
752064 and 555267 both dated 7
th
May, 2004 for a sum of Rs.1 lakh each in 
respect of which Complaint Case No. 341 of 2004 was filed. The aggregate 
sum of all these cheques is Rs.8 lakhs.  The case of the complainant is that 
on different dates from 2000 to 2003 the Petitioner accused took a loan of CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 3 of 20
Rs.8 lakhs and issued the aforementioned cheques towards his liability for 
repayment of the loans. All the cheques were drawn on Punjab National 
Bank („PNB‟), Tolstoy House, New Delhi. Some of the cheques when 
presented returned dishonoured with the remarks “account closed” and some 
others on the ground “funds insufficient”. Despite the complainant sending 
notices demanding payment, the Petitioner did not make payment within the 
statutory period.
3. At the trial after the complainant‟s evidence was recorded the petitioner 
examined himself as a defence witness and filed an affidavit by way of 
examination-in-chief.  The stand taken in his affidavit was that the Petitioner 
was working as an officer in PNB. He was introduced to the complainant in 
the year 1997 by the brother-in-law of the complainant who was a colleague 
of the Petitioner at PNB. It is stated that Petitioner‟s brother Mr. Rajesh 
Chopra was in a real estate business at that point in time. The complainant, 
on coming to know this, expressed his desire to invest money in the real 
estate business. Therefore the petitioner introduced the complainant to his 
brother Mr.Rajesh Chopra. It is stated that during the period 1997-98 the 
complainant invested the aforementioned sum in the real estate business of 
his brother and it was agreed that the invested money would be repaid 
shortly. The complainant then insisted upon the Petitioner here standing 
surety for his brother.  It is stated that pursuant to this request, the Petitioner 
issued the aforementioned cheques from his staff account at the PNB leaving 
blanks in the material particulars i.e. “without filling name, date and 
crossing”.  It is also the case of the Petitioner here that “the complainant also 
obtained 3 letters from the deponent having the dates left blank for receiving CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 4 of 20
the said amount of these loans and cheques were issued on the assurance that 
the cheques and loans would be returned once the amount is paid to the 
complainant.”  It is claimed by the Petitioner that a sum of Rs.4 lakhs was 
repaid in the last week of October 2000 to the complainant and when he was 
asked to return the cheques and letters he was assured that it would be sent 
to the Petitioner in due course and that the Petitioner trusted him to do so.  A 
further sum of Rs.1 lakh was repaid in January 2001 after the Petitioner took 
a voluntary retirement from PNB in December 2000.  It is stated that despite 
several efforts the Petitioner was unable to get the complainant to return the 
blank cheques.
4. It is claimed by the petitioner that the complainant had filed the
aforementioned three complaints after filling the name of the payee, the date 
and crossing the cheques. It is alleged that the complainant also filled the 
date of the cheques in the letters with malafide and dishonest intentions. The 
Petitioner claimed that after taking voluntary retirement, he closed his staff 
account with the PNB on 21
st
March 2001. Further he changed his signature 
in his saving bank account with Bank of Baroda, Mayur Vihar Phase-III 
Branch. 
5. On the basis of these allegations the accused filed an application in each 
of the aforementioned complaints on 3
rd
April, 2006 seeking reference of the 
cheques to the CFSL for opinion on the handwriting therein claiming that 
“the report of CFSL experts will falsify the entire case of the complainant 
filed to harass the deponent to extort money from him.” The prayer in the 
application was that the cheques and letters in question should be sent to the CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 5 of 20
CFSL “to seek scientific report and on insertion of name and address”.
6. By an order dated 31
st
August 2006 the learned MM dismissed the 
application holding as under:
“Even if it is presumed that the name and date in the 
cheque was filed by the complainant himself even in that 
case also there is no need for sending the cheque in 
dispute to CFSL for expert opinion as the signature on 
the cheques is admitted by the applicant/accused and he 
has further admitted that these cheques were issued to the 
complainant in discharge of his liability.
In view of the discussion made above, I am of the view 
that there is no need for sending the cheques in question 
to CFSL for expert opinion as no cogent and sufficient 
ground has been shown by the applicant/accused.  
Accordingly the application moved by the applicant is 
dismissed being without any merit.”
7.  By an order dated 29
th
August 2006 this Court, while directing notice to 
issue in these petitions, ordered that the trial court will not pass a final order.  
That interim order has continued till date.
8. The submission of Mr. Sudhir Nandrajog, learned counsel for the 
Petitioners is that the purpose of seeking the reference of the cheques in 
question to the CFSL for expert opinion on the handwriting was mainly to 
probablise the Petitioner‟s defence in the trial which was to the effect that by 
the time the cheques  were presented for payment, the petitioner had 
discharged the liability. While the petitioner does not dispute his signatures 
on the cheques, it is claimed that the material particulars i.e. the date, the 
name of the payee and the amount in words and figures have all been 
subsequently filled up by the complainant before presenting the cheques for 
payment. In other words it could be shown that the cheques were filled up on CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 6 of 20
a date subsequent to the period between 1997 and 2001 by which time the 
entire liability had been extinguished. This could be shown by testing the ink 
to ascertain the time when the signatures were appended and the material 
particulars were filled up. Also, it could be shown that the handwriting of 
both was different. In turn, it would show that what was handed over to the 
complainant by the petitioner was not a „cheque‟ within the meaning of 
Section 138 NI Act, i.e. a complete cheque with no blanks.
9. Mr. Nandrajog implores the Court to appreciate that the entire evidence 
was in the control of the complainant and there was no way, without the 
assistance of the court, the petitioner can expect to bring on record evidence 
by way of defence. It was finally urged that with a view to dispelling the 
impression that the petitioner was seeking to  delay the completion of the 
trial and in order to demonstrate his bonafides, the petitioner was willing to 
deposit in this Court the entire sum of Rs.8 lakhs and was willing to let the 
money be paid to complainant if the opinion of the handwriting expert did 
not substantiate the defence of the petitioner.   
10. Reliance is placed by counsel for the petitioner upon the judgment of this 
Court in  BPDL Investments (Pvt.) Ltd. v. Maple Leaf Trading 
International (Pvt.) Ltd. 129 (2006) DLT 94 to contend that if there are 
material alterations in the cheque then such an instrument is rendered void 
and could not have been presented for payment to the bank. Reliance is also 
placed on the decision of the Supreme Court in  Kalyani Baskar v. 
M.S.Sampoornam (2007) 2 SCC  258 to contend that every possible 
assistance should be offered by the court when an accused in a complaint CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 7 of 20
case seeks directions to refer a disputed cheque for the opinion of a 
handwriting expert.  It is submitted that in the said case the Supreme Court 
held that where a cheque was doubted as to its authenticity, the trial court 
ought not to refuse the request of the accused sending it for the opinion of 
the expert.  
11. Ms. Amrit Kaur Oberoi, learned counsel appearing for the Respondent 
No.2 points out that these proceedings are an attempt to somehow delay the 
matter after the entire evidence has been recorded by the trial court.  She 
further points out that the accused himself has been examined and in his 
reply he admitted that he has issued the cheques in favour of the 
Respondents and also sent the covering letters enclosing the cheques in 
question.  She further points out that for the purposes of Section 138 NI Act 
all that is to be seen is that the cheque was validly signed by the drawer. 
According to her that Section imposes a „no fault liability‟ on the drawer if it 
is shown that the drawer had signed the cheque and if other conditions 
indicated in that Section were fulfilled.  She supports the impugned order of 
the learned MM as being justified in the facts and circumstances. 
12. The first part of Section 138 NI Act indicates that there are two essential 
ingredients that have to be present in order to attract the offence under 
Section 138 NI Act.  The first is that the cheque ought to have been „drawn‟ 
by the drawer in favour of the payee on an account with a bank. As regards 
this ingredient, the petitioner submits that the cheques were signed by him 
but they were incomplete instruments since they did not contain the material 
particulars. In fact, in the form they were handed over to the complainant, CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 8 of 20
they were not cheques in the sense of the term as contemplated by the NI 
Act. 
13. The second ingredient is that the issuance of the cheque must be in total 
or partial discharge of the liability owed by the drawer to the payee. This has 
to be seen also in the light of Section 139 NI Act which states that “it shall 
be presumed unless the contrary is proved, that the holder of a cheque 
received the cheque, of the nature referred to in section 138, for the
discharge, in whole or in part, of any debt or other liability.” As regards this 
ingredient, the complainant contends that the cheques were issued towards 
the repayment of the loan borrowed by the Petitioner. The Petitioner 
however disputes that and states that there was no liability to be discharged 
by the Petitioner by the time the cheques were presented for payment. What 
requires to be noticed in addition is that even according to the Petitioner, 
although he purports to have closed his account with the PNB in March 2001 
itself, he admittedly did not inform the complainant of this fact or that he 
had ceased to be in service with the PNB since March 2001. The question of 
referring, disputed cheques for the opinion of the CFSL has to be understood 
in the above background.  
14. The word “cheque” has been inclusively defined under Section 6 NI Act 
to include a „bill of exchange drawn on a specified banker and not expressed 
to be payable otherwise than on demand…”. The words “bill of exchange” 
have been defined in Section 5 NI Act as “an instrument in writing 
containing an unconditional order, signed by the maker, directing a certain 
person to pay a certain sum of money only to, or to the order of, a certain CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 9 of 20
person or to the bearer of the instrument.” The expression „negotiable 
instrument‟ has been defined in Section 13 NI Act as meaning a “promissory 
note, bill of exchange or cheque payable either to order or to bearer.”
15. What appears to be clear from the above definitions that an essential 
feature of a cheque is that it has to be signed by the maker. This signing of 
the cheque need not be by hand alone. After the amendment to Section 6 in 
2002, the NI Act acknowledges that there can be an electronic cheque which 
can be “generated, written and signed in a secure system.” Nevertheless, the 
signing of the cheque is indeed an essential feature. But what about the other 
material particulars? Can the word “cheque” occurring in Section 138 NI 
Act include a blank cheque which is signed by the drawer but the material 
particulars of which are left unfilled at the time it was handed over to the 
payee? While on the one hand Section 138 NI Act which contemplates a „no 
fault liability‟ has to be strictly construed as regard the basic ingredients 
which have to be shown to  exist, it requires examination of the other 
provisions of the NI Act in order to ascertain if a cheque that was signed but 
left blank can, if the material particulars are subsequently filled up and 
presented for payment, still attract the same liability. 
16. The counsel for the petitioner contended that a cheque which is signed 
but left blank at the time of such signing, will be materially altered if it is 
subsequently filled up without the consent of the drawer, which according to 
him is what has happened in the present case. Such cheque would be void in 
terms of Section 87 of the NI Act and therefore cannot be presented for 
payment or honoured even if it is. Section 87 NI Act reads as under:CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 10 of 20
“Section 87 - Effect of material alteration 
Any material alteration of a negotiable instrument 
renders the same void as against anyone who is a party 
thereto at the time of making such alteration and does not 
consent thereto, unless it was made in order to carry out 
the common intention of the original parties;
Alteration by indorsee.--And any such alteration, if made 
by an indorsee, discharges his indorser from all liability 
to him in respect of the consideration thereof.
The provisions of this section are subject to those of 
sections 20, 49, 86 and 125.”
17. While  it is correct that in terms of the above provision, any material 
alteration to a cheque without the consent of the drawer unless it is made to 
carry out the common intention of the original parties thereto renders the 
cheque void, the expression “material  alteration” has not been defined. 
Significantly, Section 87 has been made subject to Sections 20, 49, 86 and 
125 NI Act.  These provisions help us to understand what are not considered 
„material alterations‟ for the purpose of Section 87. 
18. Section 20  NI Act talks of “inchoate stamped instruments” and states 
that if a person signs and delivers a paper stamped in accordance with the 
law and “either wholly blank or have written thereon an incomplete 
negotiable instrument” such person 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.” Section 49 permits the holder of a 
negotiable instrument endorsed in blank to fill up the said instrument “by 
writing upon the endorsement, a direction to pay any other person as CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 11 of 20
endorsee and to complete the endorsement into a blank cheque, it makes it 
clear that by doing that the holder does not thereby incurred the 
responsibility of an endorser.”  Likewise Section 86 states that where the 
holder acquiesces in a qualified acceptance, or one limited to part of the sum 
mentioned in the bill, or which substitutes a different place or time for 
payment, or which, where the drawees are not partners, is not signed by all 
the drawees, all previous parties whose consent has not been obtained to 
such acceptance would stand discharged as against the holder and those 
claiming under him, unless on notice given by the holder they assent to such 
acceptance.  Section 125 NI Act permits the holder of an uncrossed cheque 
to cross it and that would not render the cheque invalid for the purposes of 
presentation for payment. These provisions indicate that under the scheme of 
the NI Act an incomplete cheque which is subsequently filled up as to the 
name, date and amount is not rendered void only because it was so done 
after the cheque was signed and delivered to the holder in due course. 
19. The above provisions have to be read together with Section 118 NI Act 
which sets out various presumptions as to negotiable instruments. The 
presumption is of consideration, as to date, as to time of acceptance, as to 
transfer, as to endorsement, as to stamp.  The only exception to this is 
provided in proviso to Section 118 which reads as under:
“Provided that, where the instrument has been obtained 
from its lawful owner, or from any person in lawful 
custody thereof, by means of an offence or fraud, or has 
been obtained from the maker or acceptor thereof by 
means of an offence or fraud, or for unlawful 
consideration, the burden of proving that the holder is a 
holder in due course lies upon him.”
20. A collective reading of the above provisions shows that even under the CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 12 of 20
scheme of the NI Act it is possible for the drawer of a cheque to give a blank 
cheque signed by him to the payee and consent either impliedly or expressly 
to the said cheque being filled up at a subsequent point in time and presented 
for payment by the drawee. There is no provision in the NI Act which either 
defines the difference in the handwriting or the ink pertaining to the material 
particulars filled up in comparison with the signature thereon as constituting 
a „material alteration‟ for the purposes of Section 87 NI Act. What however 
is essential is that the cheque must have been signed by the drawer. If the 
signature is altered or does not tally with the normal signature of the maker, 
that would be a material alteration. Therefore as long as the cheque has been 
signed by the drawer, the fact that the ink in which the name and figures are 
written or the date is filled up is different from the ink of the signature is not 
a material alteration for the purposes of Section 87 NI Act. .  
21. The position in law has been explained in the judgment of the Division 
Bench of the Kerala High Court in  Lillykutty v. Lawrance 2003 (2) DCR 
610 in the following words:
“In the instant case, signature is admitted. According to the 
drawer of the cheque, amount and the name has been written not 
by the drawer but by somebody else or by the payee and tried to 
get it encashed. We are of the view,  by putting the amount 
and the name there is no material alteration on the cheque 
under S. 87 of the Negotiable Instruments Act.  In fact there 
is no alteration but only adding the amount and the date. 
There is no rule in banking business that payee’s name as 
well as the amount should be written by drawer himself.  In 
the instant case Bank has never found that the cheque was 
tampered with or forged or there is material alteration or that the CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 13 of 20
handwriting by which the payee’s name and the amount was 
written was differed. The Bank was willing to honour the 
cheques if sufficient funds were there in the account of the 
drawer even if the payee’s name and the amount was written by 
somebody else other than the holder of the account or the 
drawer of the cheque.  The mere fact that the payee’s name 
and the amount shown are not in the handwriting of the 
drawer does not invalidate the cheque. No law provides in 
the case of cheques the entire body has to be written by the 
drawer only.  What is material is the signature of the drawer 
and not the body of the instrument.  Therefore when the 
drawer has issued the cheque whether the entire body was 
written by the drawer written beyond the instructions of the 
drawer, whether the amount is due or not, those and such 
matters are defences which drawer has to raise and prove it.  
Therefore the mere fact that the payee’s name and the 
amount shown in the cheque are in different handwriting is 
not a reason for not honouring the cheque by the Bank.  
Banks would normally see whether the instrument is that of 
the drawer and the cheque has been signed by the drawer 
himself.  The burden is therefore entirely on the drawer of 
the cheque to establish that the  date, amount and the 
payee’s name are written by somebody else without the 
knowledge and consent of the drawer.  In the instant case, the  
drawer of the cheque has not discharged and burden.  Apart 
from the interested testimony of the drawer, no independent 
evidence was adduced to discharge the burden.
7. Defendant had set up a case that the two cheques were taken 
away from her establishment.  Burden is on here to show that 
the two cheques were taken away from her business premises.  
Apart from the intested testimony of the defendant there is no 
other independent evidence adduced to establish the story that 
cheques were stolen from her business premises.  Defend ant CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 14 of 20
has not cared to examine any of the employees of the 
establishment.  Counsel appearing for the defendant placed 
considerable reliance on the decision of this Court in 
Gandgadhara Panicker v. Haridasan 1989)2) KLT 730 and the 
contended that the presumption under S. 118 of the Act would 
arise only when there is a negotiable instrument which is 
admitted to have been executed.  It is pointed out that when the 
fact of execution of the cheque itself is in dispute plaintiff has to 
prove also passing of consideration.  In other words, only when 
due exe cution has been established presumption under S. 118 
(a) can be raised.  Reference was also made to the decision  of 
the Mysore High Court in Gurubasappa v. Rudriah AIR 1969 
Mys. 269.   We are of the view, in a given case cheque is issued 
by the drawer in favour of the payee and the same is 
dishonoured by the drawer’s Bank stating “funds insufficient”, 
holder of the cheque is entitled to get the amount as reflected in 
the cheque since the cheque is a negotiable instrument as per S. 
118.  We are of the view under S. 118 of the Act until the 
contrary is proved presumption can be made that every 
negotiable instrument was made for consideration.  The 
expression “until the contrary is proved” is relevant under S. 
118 of the Negotiable Instrument Act.  When the drawer of the 
cheque did not find any infirmity in the cheque presented by the 
payee presumption raised under S. 118 would apply unless the 
contrary is proved by the drawer of the cheque.   Therefore 
mere fact that the payee’s name and the amount shown in 
the cheque Is not in the handwriting of the drawer of the
cheque that by itself is not a ground to contend that they are 
not validly issued or the cheques were not executed at all.” 
(emphasis supplied)
22. Earlier in  K.C. Devassia, St. Joseph’s Chity Fund, Kaithavana v. 
Subramanian Potti II (1996) CCR 106 a learned Single Judge of the Kerala CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 15 of 20
High Court came to the same conclusion by observing in para 5 as under:
“The revision is filed against the order dismissing the 
application filed by the accused for sending the disputed 
cheque to a Hand Writing Expert and obtain his report.  
The contention raised by the revision petitioner before 
me is that a blank cheque was handed over to the 
complainant as security for the transaction between the 
two and the cheque was subsequently filled up by the 
complainant.  Counsel adds that filling up of the cheques 
by the complainant will amount to a material alteration 
coming within the purview of Section 87 of the Act.  
When a blank cheque is given, the payee can fill it up 
as he is empowered to do so under Section 20 of the 
Act.   Filling up of the blank cheque by the payee is 
different from committing a material alteration.  No 
material alteration except the fact that the blank 
cheque which was handed over by the accused to the 
complainant was filled up by him is alleged to invoke 
the provisions of Section 87. Counsel relied on the 
decisions reported in Loonkaran Sethia v. Ivan E. John, 
AIR 1977 SC 366,  Subba Reddy v. Neelapareddi, AIR 
1966 SC 267, Rattan Lal & Co. v. Assessing Authority 
Patiala (AIR 1970 SC 1742) and  Jayantilal Goel v. 
Zubeda Khanun ( AIR 1986 AP 120) to contend that a 
material alteration makes the instrument void and 
unenforceable. I have no quarrel regarding the 
proposition laid down in the above decisions.  But as 
already stated,  a material alteration is different from 
filling up a blank cheque by the payee.” (emphasis 
supplied) 
23. Recently this Court in Jaipal Singh Rana v. Swaraj Pal Singh (order 
dated 22
nd
February, 2008 in Crl.M.C. 7821/2006) after discussing the law 
on the topic, held that in a case involving the offence under Section 138 NI 
Act, the Magistrate would be justified in declining to refer the cheques for 
opinion of the handwriting expert where the signatures of the drawer on the 
cheque were not disputed by the drawer.  The situation is no different as far 
as the present case is concerned. It may be added here that there may be 
good reasons for not dishonouring a cheque merely because the ink of the 
signature and ink of the material particulars is different or that the CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 16 of 20
handwriting is different.  Numerous situations can be thought of where the 
handwriting and the ink can differ. For instance when an entire cheque is 
typed as to its material particulars, and the signature is in the handwriting of 
the drawer, such cheque can hardly be said to be void for that reason.  
24. This Court is unable to accept the contention of the petitioner that if the 
signatures on the cheques are shown to be much prior to the date of filling 
up of the material particulars that would probablise the defence of the 
Petitioner. That the signature on the cheques is that of the petitioner is not 
disputed. The Petitioner has even in his cross-examination in fact admitted 
the fact that the cheques were issued by him and were handed over to the 
complainant along with a covering letter.  For the reasons explained it 
matters little if the name of the payee, date and amount are filled up at a 
subsequent point in time, subject of course to what is stated in the proviso to 
Section 118 NI Act. 
25. It is also not possible to agree with the contention that the determination 
of the time when the signature was appended will somehow explain the fact 
that the Petitioner has discharged the entire liability even before the cheque 
was presented for payment.  Here two factors need to be noticed.  The first is 
that although the Petitioner claims that he has closed his account in 2001 
itself and that these blank cheques were handed over to the complainant 
prior to that, he did not write to the complainant informing the complainant 
that the account had been closed. Secondly, although he claimed that he has 
discharged the liability, admittedly this is only an oral assertion of the 
Petitioner and no receipts evidencing the payment of Rs.8 lakhs have been CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 17 of 20
produced in the court. It is pointed out by learned counsel for the 
Respondent No.2 that at the stage of framing of charge, the Petitioner had 
claimed before the trial court that he had with him the receipts evidencing 
repayment. However, till date no such receipt has been produced. The 
burden will be on the accused to show that in fact he has discharged the 
liability even prior to the presentation of the cheques for payment.  That 
cannot be proved by the report of a handwriting expert.  Section 139 NI Act 
which raises a rebuttable presumption in this behalf, would require some 
other positive evidence to be led by the accused to show that he has repaid 
the amount to the complainant.  In other words, merely because there is a 
CFSL report that shows that the handwriting, the ink and the time of filling 
the material particulars is different from that of the signatures, that by itself 
will not go to prove that the accused has discharged his liability towards the 
complainant even before the date of the presentation of the cheques. For 
these reasons, there is no merit in the prayer of the petitioner for sending the 
cheques to the CFSL for the opinion of the handwriting expert.
26.1 Since much reliance was placed on the judgment in Kalyani Baskar, 
the facts in the said case may be noticed first. In para 2 it is stated that the 
accused there had raised a preliminary objection that she “has not signed the 
cheque or issued it to the complainant respondent.” This is a major 
distinguishing feature of the said decision in its application to the facts of the 
present case where the accused is not disputing his signatures on the 
cheques. The observations in para 12 of the said decision have therefore to 
be understood in the above factual context. Since an essential ingredient of 
Section 138 is the signature of the drawer on the cheque, the trial court there CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 18 of 20
could not have denied the accused the chance to prove that defence. The 
defence of denial of signatures naturally required the opinion of the 
handwriting expert. 
26.2 In para 12 of  Kalyani Baskar, after noticing the above facts, the 
Supreme Court held as under:
“12. Section 243(2) is clear that a Magistrate holding an 
inquiry under CrPC in respect of an offence triable by 
him does not exceed his powers under Section 243(2) if, 
in the interest of justice, he directs to send the document 
for enabling the same to be compared by a handwriting 
expert because even in adopting this course, the purpose 
is to enable the Magistrate to compare the disputed 
signature or writing with the admitted writing or 
signature of the accused and to reach his own conclusion 
with the assistance of the expert.  The appellant is 
entitled to rebut the case of the respondent and if the 
document viz. the cheque on which the respondent has 
relied upon for initiating criminal proceedings against the 
appellant would furnish good material for rebutting that 
case, the Magistrate having declined to send the 
document for the examination and opinion of the 
handwriting expert has deprived the appellant of an 
opportunity of rebutting it.  The appellant cannot be 
convicted without an opportunity being given to her to 
present her evidence and if it is denied to her, there is no 
fair trial.  “Fair trial” included fair and proper 
opportunities allowed by law to prove her innocence. 
Adducing evidence in support of the  defence is a 
valuable right. Denial of that right means denial of fair 
trial.  It is essential that rules of procedure designed to 
ensure justice should be scrupulously followed, and the 
court should be jealous in seeing that there is no breach 
of them. We have not been able to appreciate the view of 
the learned Judge of the High Court that the petitioner 
has filed application under Section 243 CrPC without 
naming any person as witness or anything to be 
summoned, which are to be sent for handwriting expert 
for examination.  As noticed above, Section 243(2) CrPC 
refers to a stage when the prosecution closes its evidence 
after examining the witnesses and the accused has 
entered upon his defence.  The appellant in this case 
requests for sending the cheque in question, for the 
opinion of the handwriting expert after the respondent 
has closed her evidence, the Magistrate should have CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 19 of 20
granted such a request unless he thinks that the object of 
the appellant is vexation or delaying the criminal 
proceedings.  In the circumstances, the order of the High 
Court impugned in this appeal upholding the order of the 
Magistrate is erroneous and not sustainable.”
26.3 It was submitted that since the Supreme Court has held that the 
document should be sent for comparison by a handwriting expert to enable 
the Magistrate to compare the “disputed signature or writing with the 
admitted writing or signature of the accused….” not only the cheque but also 
the letter ought to have been referred for opinion of the handwriting expert.  
As already noticed, the accused in the above case was denying her signature 
on the cheque. The question of referring any other document in the form of a 
letter for the opinion of a handwriting expert clearly did not arise on the 
facts of that case. Where the accused facing the trial for the offence under 
Section 138 is disputing the signature on the cheque itself, then this is a 
permissible defence within the scope of Section 138 NI Act. In fact an 
accused facing trial for this offence has a very limited range of defences to 
adopt. One is to show that the signature on the cheque is not that of the 
accused. The other is to show that there is no outstanding towards payment 
of the debt. While the former can be proved through the evidence of an 
handwriting expert, the latter cannot possibly be proved in that manner. The 
decision in Kalyani Baskar is not of assistance to the petitioner.
26.4 An extensive reference was made to the judgment of this Court in 
BPDL Investments (Pvt.) Ltd.which arose in the context of a summary suit 
in which an application for leave to defence was being considered. It was 
submitted in that case that two undated cheques had been issued by the CRL.M.C. Nos. 5211, 5217 & 5291/2006                                             Page 20 of 20
defendant in favour of the plaintiff and before it was presented the date was 
filled up by the plaintiff and that this constituted a material alteration.  
Following the decision of the Andhra Pradesh High Court in  Allampati 
Subba Reddy v. Neelapareddi AIR 1966 AP 267, this Court held that there 
was no consent of the defendant to the alteration of the date and therefore in 
terms of Section 87 of the NI Act it was a material alteration.  In the first 
place, this was not a case arising under Section 138 NI Act at all.  Moreover, 
while adverting to Section 87 of the Act, the Court did not notice that the 
said  Section was subject to Sections 20, 49, 86 and 125 NI Act. These 
provisions permit the holder in due course of a negotiable instrument to fill 
up the material particulars without the said instrument being rendered void. 
Section 87 contemplates an otherwise complete cheque which when 
presented for payment would be able to be honoured except for the material 
alteration. For instance there is an overwriting or cutting in the material 
particulars which has not been initialed by the drawer, then that would 
prevent the bank from passing the cheque for clearance. Therefore, this 
decision is also not of relevance to the facts on hand.
27. For all the aforementioned reasons, this Court finds no infirmity in the 
order of the learned MM declining to refer to the cheques for the opinion of 
the handwriting expert.  The petitions are accordingly dismissed but in the 
circumstances with no order as to costs. The pending applications are 
disposed of.
   S. MURALIDHAR, J.
MARCH 13, 2008
dn