you are an advocate but you have given blank cheques for repayment of loan

2) section 138 NI is attracted on dishonour of the cheques

3) when you issue blank cheques you authorise drawee to fill in the details

4) There is presumption that when cheque is issued it was in discharge of debt due and payable

5) there are judgments that when blank signed cheque has been issued by the drawer he authorises drawee to fill in details as to name , amount and it does not amount to material alteration of cheque

6) excess cheque amount attracts 138 NI

7) Supreme Court in Kalyani Baskar v. M.S. Sampoornam held that every possible assistance should be offered by the court when an accused in a complaint case seeks directions to refer a disputed cheque for the opinion of a handwriting expert. 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.

8) you have not mentioned how you repaid the loan amount . if it was by cheque bank statement would refelct repaymen tof loan

9) you should have made application in trial court to seek CFSL report on the receipt if complainant denied his siganture on the receipt

A closer scrutiny of the ingredients of Section 20 of the Negotiable Instruments Act, 1881 unerringly points out that filling up of blank cheque is neither a case of 'Material Alteration' of the cheque nor 'Fabrication or Forgery'. An implied authority is given to the holder of the cheque, at the time of entrusting a blank cheque containing the signature of the Drawer of the cheque alone, to fill the columns therein. Based on the implied authority, if the columns are filled up mentioning the date and amount by words and figures, it would not amount to any offence much less the offence punishable under Sections 468 and 471 of the Indian Penal Code as per decision Chinthala Cheruvu V. State reported in 2007 (1) Bankmann 546.

it is to be pointed out that in the case of a signed blank cheque, the Drawer gives an authority to the Drawee to fill up the agreed liability. If the Drawee were to dishonestly fill up any excess liability and the extent of liability becomes bona fide matter of civil dispute in such case, the Drawer has no obligation to facilitate the encashment of cheque. The dishonour of cheque under such circumstance does not attract prosecution under Section 138 of the Negotiable Instruments Act, as per decision Shreyas Agro Services Private Limited V. Chandrakumar, (2006) CriLJ 3140 (Karnataka).

Smt. Sunita Dubey vs Hukum Singh Ahirwa ALL MR (cri) journal 346

When a person transferred a blank cheque to the creditor for any purpose that amounts to cheque was been issued under the security within the purview and presumption of Section 139 of Negotiable Instrument Act. As per the section 20 of NI act when blank cheque is given by drawer he gives authority to payee to complete the instrument. It is unequivocally established that payee can fill or write over the cheque but it shall be original transaction amount. It has a exception under the Section 87 if the payee failed to prove under the section 20 in respect of authority that amounts of material alteration. In this regard, the accused can’t take any defence under the grounds that contents of the cheque not written by me and the same filled by the complainant. Therefore, the handwriting and contents in the cheque is immaterial.

Section 20. Inchoate stamped instruments- 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 recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."

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.

Unable to find any authority that amount given through unaccounted money does not attract provisions of section 138 NI

1. Whether the accounted money attract 138 NIA.

The legally liable debt if proved then there is no question of unaccounted money etc.

2. Whether the excess cheque amount (as the cheques was for Rs. 70,000+55000=1,25,000) than loan amount of Rs. 1,00,000/- attract 138 NIA.

He might have added the interest from the date of loan or he might have said that the loan amount itself is Rs. 1,25,000/-, you have not mentioned that what was the loan amount did he mention in the cheque bounce case petition?

3. Whether i request the appellant court to seek CFSL report over the signature on receipt.

The expert opinion sought by both gave favorable reply to each party - what do you mean by this?

Did you send his signature for verification by the hand writing expert's opinion under section 45 of the Indian evidence act?

4. what the additional plea can i also take.

kindly mention any authorities in these respect also

No authorities will work out now if you have not attached any authority during the trial proceedings

but sir you did not say anything about the unaccounted money whether 138 attract the payment by unaccounted money. it there any authority which says amount given through unaccounted money do not attract 138 NIA and whether any other defence available to me as per the circumstances.

If he has proved the legally liable debt then there is no question that whether this unaccounted money will attract the provisions of section 138 NI act.

The act clearly says that there should be legally liable debt.

By the way why did yo not give a reply to the legal notice denying the allegations?

That would have saved half of the strain what you have taken during trial proceedings.

Dear Querist

My opinion on your queries are as under:-

1. Whether the accounted money attract 138 NIA.

Opinion:- Account money or non accounted money are immaterial, bouncing of cheque will be attract 138 of N.i.Act. it should be asked during the cross examination that you are given the money on interest or not, if that person admitted that he lend you money on interest then you can file a complaint against him before the court police or DM/DC because without license issued by the Authority nobody can lend money on interest. that person can be prosecuted for the offence of money loundery which is illegal.

2. Whether the excess cheque amount (as the cheques was for Rs. 70,000+55000=1,25,000) than loan amount of Rs. 1,00,000/- attract 138 NIA.

Opinion: as you was not able to proved your case before the trial court hence there is no option for you to raised the objection in appeal until and unless that person admitted that the amount was 1,0,5000/-

3. Whether i request the appellant court to seek CFSL report over the signature on receipt.

Opinion:- This Question should be raised before the trail court and can not be raise in Appeal.

4. what the additional plea can i also take.

Opinion:- It's depend on the entire facts and examination of witnesses in your case.

Feel Free to Call