Andhra Pradesh High Court - Amravati
Gummadi Ebenezer. vs The State Of A.P. on 15 October, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Criminal Petition No.1400 of 2015
ORDER:
1. This petition under Section 482 of Criminal Procedure Code (for short 'Cr.P.C') is filed to quash the order in C.R.P No.59 of 2013 dated 12.01.2015 passed by XI Additional District and Sessions Judge, Tenali, Guntur District, whereby the order passed by the Additional Junior Civil Judge, Repalle in Crl.M.P No.2792 of 2013 in C.C No.424 of 2011 was confirmed.
2. The respondent filed a private complaint, for the offence punishable under Section 138 of Negotiable Instruments Act (for short N.I Act), alleging that this petitioner borrowed an amount of Rs.5,00,000/- on 15.09.2010, for his family expenses, agreeing to repay the same with interest @ 24% per annum either to him or to his order as and when demanded, executed a promissory note. Subsequently, to discharge the debt due under the promissory note, the petitioner issued a cheque bearing No.096463 for Rs.5,00,000/- drawn on State Bank of India, Repalle Branch dated 15.09.2011, on its presentation for collection, with Axis bank at Repalle Branch, it was dishonoured with an endorsement 'funds insufficient' and thereafter, notice in compliance of Section 138 of N.I Act was issued, but the amount covered by dishonoured cheque was not paid.
3. The petitioner mainly contended that the blank signed promissory note and cheque were issued as a security for the amount borrowed earlier and the debt was discharged, but the signed blank promissory note and cheque were not returned. Therefore, the cheque marked as Ex.P2 is required to be referred to an expert for opinion. But the trial 2 MSM, J Crl.P No_1400_2015 court, dismissed the petition, assigning reason and the order challenged in revision under Section 397 of Cr.P.C is confirmed and the revision is ended in dismissal.
4. Aggrieved by the order, the present criminal petition under Section 482 of Cr.P.C is filed, raising the same contention.
5. It is not the case of the petitioner that the petitioner never signed on the promissory note or cheque. On the other hand, admitted that the 2nd respondent obtained blank signed promissory note and cheque as a security. When the petitioner admitted his signature on the document, making request to refer the signature on the document for the expert for opinion, would not serve any purpose. Even assuming for a moment, that the blank signed cheque was issued in favour of the respondent by the petitioner as a security, such question cannot be decided based on the opinion. A similar issue came up before the High Court of A.P at Hyderabad in Duggineni Seshagiri Rao v. Kothapalli Venkateswara Rao1 and the Division Bench of this Court held that:
"Four things are necessary for an instrument to be a promissory note: 1) It should be in writing; 2) It should have an unconditional undertaking; 3) It should be signed by the maker; and 4) it should be in favour of certain person or to a bearer.
Section 20 makes inchoate stamped instruments legal instruments. The dictionary meaning of 'inchoate' is 'incomplete'. So, incomplete stamped instruments are as good as the instruments mentioned in Section 4 of the Act. Even if one looks to the definition of the 'promissory note' under Section 4, one would find that the requirements for making an instrument a promissory note do not contain the requirement of naming a person, it can be given in favour of a certain person or to bearer of the instrument. That makes it clear that, one who is holding the document is the person who derives rights out of that instrument. In other words, it would mean that the document with first three requirements as stated above, should be delivered to the payee, once it is delivered it becomes a 1 2001 (6) ALT 95 (D.B) 3 MSM, J Crl.P No_1400_2015 promissory note. Name and other particulars can be filled up even at a later stage. When one reads Section 4 in conjunction with Sections 20 and 42 that is the only interpretation that can be placed on the meaning of 'promissory note' under Section 4 of the Act. Section 20 lays down that when a person signs and delivers to another person a paper stamped in accordance with law relating to negotiable instrument it becomes a negotiable instrument even if it is wholly blank or written with incomplete particulars. Similarly, Section 42 even recognizes instrument issued in the name of fictitious person to be a valid instrument. Although Section 42 relates to bills but it also accepts that an acceptor of a bill of exchange even if it was in drawn in a fictitious name it would create a genuine claim in favour of the holder. Therefore, even if a negotiable instrument is incomplete it would be a legal instrument provided it satisfies the first three conditions.
Holder of the instrument becomes a bearer of the instrument."
Their Lordships further held as follows:
"The plaintiff had been able to prove the execution of the document. On the other had, if the document was disputed or doubted the onus was on the defendant to show that the document was a forgery because a presumption is in favour of plaintiff under Section 118 of the Negotiable Instruments Act."
6. The same principle was laid down by the Karnataka High Court in H.Maregowda and etc. v. Thippamma and others2 and held that:
A reading of Section 20 of the Negotiable Instruments Act which is extracted above will reveal that the words used are either wholly blank or having written thereon an incomplete negotiable instrument. Thus, even if a blank promissory note is given, it cannot be taken as a defence to avoid a decree based on such instrument, once it is found that the document produced before the Court satisfies the requirements of a promissory note within the meaning of the Negotiable Instruments Act. The instrument may be wholly blank or incomplete in particular; in either case, the holder has the authority to make or complete the instrument as a negotiable one.
7. But in the later judgment reported in Sukhminder Singh v. Nirbhai Singh3, the same principle was reiterated. Therefore, when the petitioner contending that the blank signed promissory note and cheque 2 C.R.P.Nos.1574, 1590 and 1591 of 1995, dated 01-10-1999 3 AIR 2013 Punjab and Haryana page 77 4 MSM, J Crl.P No_1400_2015 were issued, utilizing the same, the complaint was filed which is for the drawee of the cheque and promisee under the promissory note to fill the document, to make it as a Negotiable Instrument Act, in view of the power conferred by Section 20 of N.I Act. Even if the contention of this petitioner with regard to issuing the blank signed cheque and promissory note in favour of the petitioner, as a security, is not a ground to quash the order in view of the judgment of Apex Court in Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd4.
8. Yet another lacuna, in the order under challenge before this Court is that filing a revision under Section 397 of Cr.P.C, against the order passed by the trial court in a petition filed under Section 45 of Indian Evidence Act is not maintainable, since the order under challenge before the revisional court is interlocutory in nature and it cannot terminate the entire proceedings, even if the petition is allowed, in view of the power under Section 397 (2) of Cr.P.C. Therefore, dismissal of revision by the District Judge, cannot be found fault. Hence, I find no ground to interfere with the order passed by the court and consequently the petition is liable to be dismissed.
9. In the result, the petition is dismissed.
10. Consequently, miscellaneous petitions, pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated: 15.10.2019 Rvk 4 AIR 2016 Supreme Court 4363