Joymon vs Luxor Writing Instruments P.Ltd.
2016 Latest Caselaw 1416 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       CRL.M.C. No.2160/2013

                                      Date of Decision: February 23rd , 2016

     JOYMON                                            ..... PETITIONER
                           Through:   Mr. Wills Mathews, Mr. Shashank
                                      Menon, Advocates


                           versus

     LUXOR WRITING INSTRUMENTS P.LTD.        ..... RESPONDENT
                  Through: Mr. Chand Zafar, Advocate


     CORAM:
     HON'BLE MR. JUSTICE P.S.TEJI

                                      ORDER

P.S.TEJI, J

1. The present petition has been preferred under Section 482 of the

Code of Criminal Procedure, praying for summoning the records and

proceedings of the Complaint Case No.279/1/12 titled as M/s Luxor

Writing Instruments Pvt. Ltd. v. Joymon; setting aside the order dated

15th February, 2013 passed by the learned Additional Session Judge(ASJ)

-01, Patiala House Courts, New Delhi whereby the application of the

petitioner under Section 243(2) of the Code of Criminal Procedure, for

sending the cheques in question for expert opinion, was dismissed by

learned Special Metropolitan Magistrate, Patiala House, New Delhi vide

order dated 17th October, 2012 and, inter alia seeking issuance of

direction to the Trial Court to take on record the application for referring

the dishonoured cheque for CFSL report/hand writing expert.

2. The facts giving rise to the present petition are within the narrow

compass and to the extent necessary, narrated hereinafter.

3. The petitioner namely Mr.Joymon was the proprietor of M/s Gokul

Agencies having his office at Thiruvananthapuram, Kerala while the

respondent- M/s Luxor Writing Instruments Private Limited was having

its registered office at New Delhi. The petitioner was having business

transaction since the year 2000 with the respondent. As per the

petitioner, on 8th April, 2000, he had issued a Demand Draft for the sum

of Rs.50,000/- as first advance payment and tendered five blank cheques

bearing signatures and the name of the respondent-company, to the

respondent as security. It is contended that the cheques were issued

without date and time having written on them.

4. Learned counsel for the petitioner has submitted that on 13th July,

2001, the dealings between the petitioner and respondent were

discontinued for the reason that the same were not viable as the

movement of the product was slow. A meeting in this regard was

organized by the All Kerala Distributors Association. As per the

petitioner, on 30th November, 2001, it was also agreed between the

parties that the petitioner would hand over to the respondent all the

existing stock on or before 1st December, 2001 against receipt and the

existing market outstanding as on date was to the tune of Rs.1,72,139/-

which was to be collected jointly. As per the petitioner, he was

maintaining a statement of accounts of the transactions which took place

with the respondent and as per that statement, the closing balance on

conclusion of business dealings was to the tune of Rs.90,202.33 for the

period commencing from 8th April, 2000 to 15th December, 2001.

5. Learned counsel for the petitioner next contended that on 5th

December, 2001, the petitioner returned the stock of goods by Cochin

Freight Carriers Pvt. Ltd. and got an endorsement of the respondent on

the statement of account. It is alleged by learned counsel for the

petitioner that the respondent wrote an exorbitant figure of

Rs.4,81,506.00 on one of the cheques issued on 8th April, 2000 and put a

date of 16th October, 2002 on it and presented the same for encashment

which was dishonoured for the reason of insufficient funds. After the

dishonour of the said cheque, on 7th November, 2002 the respondent

issued a legal notice to the petitioner under Section 138 of the Negotiable

Instruments Act, claiming a sum of Rs.4,81,506/-. However, as per the

petitioner, he was maintaining a statement of accounts of the transactions

which took place with the respondent and as per this statement, the

closing balance on conclusion of business dealings was to the tune of

Rs.90,202.33 for the period commencing from 8th April, 2000 to 15th

December, 2001. On 13th December, 2002, the petitioner replied to the

legal notice denying the liability of the value of the dishonoured cheque.

The petitioner also requested the respondent to take back the damaged

stock of goods amounting to Rs.1,75,000/- and adjust their dues of

Rs.90,202.33 and requested thereby to repay the balance amount of

Rs.85,000/- back to the petitioner.

6. During the complainant evidence, the witness on behalf of the

complainant made a statement that the accused had written the date and

amount in words and figures in the cheque and that the complainant

received a current dated cheque instead of a post dated cheque. On 30th

July, 2009, the petitioner had filed an application under Section 45/73 of

the Evidence Act before the learned Magistrate which was dismissed

holding that the time for moving the said application has not come.

7. During the course of defence evidence, on 14th October, 2011, the

petitioner had filed an application for direction for referring the

dishonoured cheque to a handwriting expert and for obtaining an opinion

from CFSL. An application filed by the petitioner on 17th October, 2012

under Section 243(2) Cr.P.C. was dismissed by the learned Magistrate

observing that even if it is proved that the cheques were undated, it would

be of no help to the accused as the cheques were duly signed by the

accused and as per Section 20 of Negotiable Instruments Act, the holder

of a cheque has all authority to fill the details without appreciating

subsequent amendments to the Negotiable Instruments Act. It is alleged

by learned counsel for the petitioner that the defence of the petitioner was

not taken into consideration.

8. Thereafter, the petitioner filed a Criminal Revision Petition which

was dismissed by the learned Sessions Judge observing that the learned

Metropolitan Magistrate had rightly noted that as per Section 20 of

Negotiable Instrument Act, the holder of the inchoate instrument/cheque

is authorised to fill in the details and that no purpose would be served in

sending the said cheque for examination by the expert agencies. It is

alleged by learned counsel for the petitioner that the learned Sessions

Judge did not take into consideration the fact that the amendment to the

Negotiable Instruments Act incorporating Section 138 of Negotiable

Instrument Act was a subsequent event and under Section 139 of the

Negotiable Instrument Act, there is a presumption in favour of the holder,

however, the accused has the right to rebut the same. It is further

contended that Section 20 of the Negotiable Instrument Act is not an

unconditional right to the holder to write any figure of his choice but only

the figure not in excess of the amount intended by the person who issued

the cheque to the holder.

9. In support of his contentions, learned counsel for the petitioner has

relied on the pronouncements of the Supreme Court in T. Nagappa v.

Y.R. Muralidhar (2008) 5 SCC 633: G. Someshwar Rao v. Samineni

Nageshwar Rao & Anr. (2009) 14 SCC 677 & Kalyani Baskar (Mrs.) v.

M.S. Sampoornam (Mrs.) (2007) 2 SCC 258. Learned counsel for the

petitioner also relied on the judgment passed by Karnataka High Court in

Crl.P. No.7723/2009 Ishwar s/o Mahadevappa Hadimani v. Suresh, s/o

Rachappa Pattepur; judgment passed by Madras High Court in

Cr.R.C.(MD) No.694/2013 M.S. Saravanan v. S.M. Jeyaraj and the

judgment passed by Orissa High Court in Cr.M.C. No.2180/2009 Varun

Passary & Anr. v. Maithan Ispat Limited.

10. Learned counsel for the respondent, on the other hand, has

submitted that the application filed by the petitioner under Section 45 of

the Indian Evidence Act for sending the cheques to the Central Forensic

Science Laboratory, has been rightly dismissed by the learned

Metropolitan Magistrate and, thereafter, by learned Additional Session

Judge. The respondent has averred that the five cheques given as security

on 8th April, 2000, were not blank and in fact, the cheque in question was

given against the amount due and payable as per the statement of account

which was to the tune of Rs.4,81,506/- and not Rs.90,202.33 as

manipulated by the petitioner. The respondent strongly denied that the

rest of the contents were put by the respondent himself in the cheque. It

is submitted that the respondent presented the cheque for encashment

issued by the petitioner only for his liability. Learned counsel for the

respondent denied the averment of the petitioner that the business

dealings and transactions between the parties were discontinued for the

reason that the same were not viable as the movement of the product was

slow. The respondent in the reply filed, has denied the averment of the

petitioner having returned the goods to the respondent.

11. Learned counsel for the respondent has further contended that the

second application of the petitioner under Section 243(2) of Cr.P.C. was

not maintainable, as the petitioner himself had admitted that the cheque

was given to the respondent with his signature against dues and in the

discharge of his liability and as such, no purpose would be served by

examining them through the handwriting expert.

12. I have heard learned counsel for the parties at length and perused

the available records. I have also gone through the judgments cited by

learned counsel for the petitioner.

13. Reverting back to the facts of the present case, insofar as Section

20 of the Negotiable Instrument Act, 1881, regarding inchoate stamped

instrument is concerned, the same reads as under:-

"20. Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in 15 [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 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 recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder..."

14. It is crystal clear from a bare reading of Section 20 of Negotiable

Instruments Act, that if a blank cheque is signed and handed over, it

insinuates that the person signing it has given an implied authority to the

holder to fill it.

15. It is also pertinent to mention here that the first application filed by

the petitioner under Sections 45 & 73 of the Indian Evidence Act, seeking

direction to send the disputed cheque to a hand writing expert and CFSL

for examination, was dismissed by the learned Metropolitan Magistrate

holding that the time for moving the said application had not come.

16. It is admitted case of the petitioner that the cheques bear his

signature. The only dispute is with regard to the writing of the cheque

which the petitioner sought to examine through the expert. When it is

admitted case of the petitioner that the cheques in question bear his

signatures, as per Section 20 of the N.I. Act, it reflects that the person

signing the cheque has given an implied authority to the holder to fill it.

17. So far as second application of the petitioner under Section 243(2)

of the Code of Criminal Procedure, seeking direction for having CFSL

report and opinion of handwriting expert to prove the difference in the

handwriting in the cheque with reference to amount in figure and words

with date on the one hand and signature and name of the bearer of the

cheque on the other, the same was rightly dismissed by the learned

Metropolitan Magistrate vide order dated 17th October, 2012, on the

ground that even if it is proved that the cheques were undated cheques, it

would be of no help to the petitioner as the cheques were duly signed by

the petitioner and as per Section 20 of Negotiable Instrument Act, the

holder of a cheque has all the authority to fill the details. The learned

Metropolitan Magistrate was also right in holding that it was admitted

fact that the cheques were duly signed by the petitioner and that the name

of the complainant was also written by the petitioner himself.

18. Even otherwise, the criminal complaint was filed in the year 2002

and about thirteen years have lapsed, but the trial has not seen the light of

the day. The petitioner/accused is procrastinating the conclusion of

complaint on one pretext or the other. Firstly, he moved the application

under Sections 45 & 73 of the Indian Evidence Act and then moved the

application under Section 243(2) of the Code of Criminal Procedure.

After dismissal of the complaint, he preferred the revision petition and

then approached this Court. The conduct of the petitioner shows delaying

tactics for which the complainant is suffering for long.

19. For all the aforegoing reasons, I do not find any infirmity or

illegality in the order dated 15th February, 2013, passed by the learned

Additional Sessions Judge, dismissing the revision petition preferred by

the petitioner.

20. Consequently, the present petition is dismissed.

(P.S.TEJI) JUDGE

FEBRUARY 23rd, 2016 aa