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1 - 10 of 11 (0.25 seconds)Section 138 in The Negotiable Instruments Act, 1881 [Entire Act]
M.G. Gurubasappa vs Rudriah on 23 November, 1967
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 Section 118. We are of the view under Section 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 Section 118 of the Negotiable Instruments Act. When the drawer of the cheque did not find any infirmity in the cheque presented by the payee presumption raised under Section 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. The story put up by the drawer of the cheques that those cheques were stolen is not supported by any independent evidence, so found by the trial court. Plaintiff has executed a gift deed on 27.2.1993 in favour of her daughter and it was alleged that the title deed of property was also found necessary. Therefore, at least on 27.2.1993 the plaintiff would have known about the cheque and the title deed and if they were found missing would have filed a complaint then and there and would have given a stop memo to the Bank. No steps have been taken by the plaintiff. The contention that the title deed and the cheque were found missing and therefrom cannot be believed. In such circumstances, we find no reason to interfere with the reasoning of the trial court. Plaintiff is entitled to realise the plaint claim. However, we are of the view, interest awarded by the court below is excessive. In such circumstances, we are inclined to decree the suit allowing the plaintiff to realise the sum of Rs. 2,65,000/- with interest at 9% per annum on the principal amount of Rs. 2,25,000/- from the date of suit till date of decree and thereafter at the rate of 6% per annum till the decree is executed.
Shallo Devi And Anr. vs Mohinder Singh And Ors. on 28 October, 1970
A1 in this case was executed after the date of the first cheque viz., on 27.2.1993. Evidently Exts. A1 and A2 documents were executed so as to defraud the creditors. It has been held in the decisions in Smt. Shallo Devi v. Mohinder Singh (AIR 1971 Punjab & Haryana 325), Ramaswami Chettiar v. Mallappa Reddiar (AIR 1920 Madras 748), Badri Dass v. Chunilal (AIR 1961 Punj.
N.N.L. Ramaswami Chettiar vs Mallappa Reddiar on 29 April, 1920
A1 in this case was executed after the date of the first cheque viz., on 27.2.1993. Evidently Exts. A1 and A2 documents were executed so as to defraud the creditors. It has been held in the decisions in Smt. Shallo Devi v. Mohinder Singh (AIR 1971 Punjab & Haryana 325), Ramaswami Chettiar v. Mallappa Reddiar (AIR 1920 Madras 748), Badri Dass v. Chunilal (AIR 1961 Punj.
Kallubandi Nanjamma vs Kethe Rangappa And Ors. on 5 February, 1953
398) and K. Najamma v. K. Rangappa (AIR 1954 Madras 173) that the transfer of immovable property made with intent to defeat or delay the creditors of the transferor is voidable at the option of any creditor so defeated or delayed and such creditor can avoid the transfer by attaching that transferred property in execution of the decree and thus exercise his option to avoid that transfer. In the instant case Exts. A1 and A2 documents were executed after the issuance of the first cheque with a view to defeat the claim of the creditor. In such circumstances we are of the view the court below has rightly rejected the petition. The appeal would therefore stand dismissed. In the facts and circumstances of the case, parties would bear their respective costs in these appeals.
Section 87 in The Negotiable Instruments Act, 1881 [Entire Act]
Bhaskaran Chandrasekharan vs V. Radhakrishnan on 6 April, 1998
Admittedly signature shown in the cheques is that of the drawer but his case is that he had not filled up the cheque. It was alleged that payees name as well as the amounts shown in the cheques are not in the handwriting of the drawer and therefore those might have been filled up by the plaintiff to lay a claim on the cheques signed by the drawer. The question is whether in a case where the payee puts the date in a cheque signed by the drawer, such cheque could be encashed came up for consideration before a Division Bench of this Court to which one of us (Radhakrishnan, J.) was a party in Bhaskaran Chandrasekharan v. Radhakrishnan (1998 (1) KLT 881). The Division Bench held that when a cheque is issued for consideration and there is no dispute regarding signature, amount and name, it cannot be said that by putting a date on the cheque by the payee who is the holder of the cheque in due course would amount to material alteration rendering the instrument void. When cheque is admittedly issued with blank date, and when the drawer has no objection with regard to the name, amount and signature, it can be presumed that there is an implied consent for putting the date as and when required by the payee and get it encashed unless the contrary is proved. The burden is entirely on the drawer of the cheque to establish that the payee had no authority to put the date and amount and then encash the cheque. There are instances where blank cheques are issued to the payee. If any amount is due to the payee from the drawer of the cheque and that amount is shown in the cheque which is admittedly signed by the drawer, the presumption could be drawn that the cheque has been validly issued. An implied consent can be presumed in such a situation. Once a cheque is drawn by a person on an account maintained by the Bank and is returned with the endorsement "funds insufficient", it amounts to dishonour within the meaning of Section 138 of the Negotiable Instruments Act. Section 138 confirms the presumption provided under Section 118 (a) and 118(g) of the Act.
The Code of Civil Procedure, 1908
Narayanan Gangadhara Panicker vs T.R. Haridasan on 6 October, 1989
7. Defendant had set up a case that the two cheques were taken away from her establishment. Burden is on her to show that the two cheques were taken away from her business premises. Apart from the interested testimony of the defendant there is no other independent evidence adduced to establish the story that the cheques were stolen from her business premises. Defendant 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 Gangadhara Panicker v. Haridasan (1989 (2) KLT 730) and contended that the presumption under Section 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 execution has been established presumption under Section 118(a) can be raised.