Negotiable Instruments Act

Putting larger amount in cheque than actual liability is a fraud

04 January 2020


Appellate Division :
(Criminal)
Md Abdul Wahhab Miah J  
Syed Mahmud Hossain J  
Hasan Foez Siddique J     
Mirza Hussain Haider J
Alauddin (Md) ...Appellant
                 vs
 State, represented by the Deputy Commissioner,
Chittagong and others....Respondent
Judgment
October 24th, 2017
Negotiable Instruments Act (XXVI of 1881)
Section 138
Any alteration without the consent of the party who issued the cheque rendered the same invalid. However, question of issuance of blank cheque and fraudulent insertion of larger amount than actual liabilities is a question of fact. Insertion of larger amount in blank cheque than actual liability is an ingredient of fraud which cannot be approved since fraud goes to the root of the transaction. Where there is an intention to deceive and means of the deceit to obtain an advantage there is fraud………………………………..(15)
Negotiable Instruments Act (XXVI of 1881)
Section 138
The High Court Division on an application under Section 561A of the Code is not authorized to quash a proceeding adjudicating a disputed question of fact. Once issuance of cheque and signature thereon are found to be genuine, the court shall proceed with the proceeding. Question of fraud or fraudulent insertion can only be determined by recording and considering evidence by the trial Court after holding Trial.  However, if blank cheque is issued towards liability or as security, when the liability is proved, if the cheque is filled up and presented to the bank the person who had drawn the cheque cannot avoid criminal  liability………….. (16)
Code of Criminal Procedure (V of 1898)
Section 561A
The disputed question of fact as to the issuance of cheque as 'security' or 'advance' or 'post dated' can only be decided upon recording evidence…………………(17)
Negotiable instruments Act (XXVI of 1881)
Section 138
The offence under Section 138 of the Act is not a natural crime like hurt or murder it is an offence created by a legal fiction, in the statute. It is a civil liability, transformed into a criminal liability under restricted conditions by way of an amendment of the Act………………………………………………………… (13)
Negotiable Instruments Act (XXVI of 1881)
Section 138
The language used in Section 138 of the Act is significant. The commencement of section stands with the words, 'where any cheque'. Those three words are of more significance, in particular, by reason of the user of the word 'any'-the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for whatever reason it may be, the liability under this provision cannot be avoided, if the same stands returned by the banker unpaid…………………………………(14)
Negotiable Instruments Act (XXVI of 1881)
Section 138
The post-dated cheque becomes a cheque within the meaning of Section 138 of the Act on the date which is written thereon and the 6 months period has to be reckoned for the purposes of Proviso (a) to Section 138 of the Act from the said date……………………………(11)
Negotiable Instruments Act (XXVI of 1881)
Section 138
Once the loan was disbursed and installments have been taken due on the cheque as per the agreement, dishonour of such cheques would fall under Section 138 of the Act………………………………..(12)
AJ Mohammad Ali, Senior Advocate (with Kayser Kamal, Advocate) instructed by Zainul Abedin, Advocate-on-Record-For the Appellant (In Criminal Appeal Nos.11-17 of 2017).
M Ashrafuzzaman Khan, Advocate-on-Record-For the Petitioner (In Civil Petition No.533 of 2017).
Shamsuddin Babul, Advocate instructed by Giasuddin Ahmed, Advocate-on-Record-For the Petitioner (In Criminal Petition No.600 of 2016).
Md Harun-or-Rashid, Advocate instructed by Zainul Abedin, Advocate-on-Record-For the Petitioner (In Criminal Petition Nos. 493-502 of 2016).
Ramjan Ali Sikder, Advocate instructed by Zohirul Islam, Advocate-on-Record-For the Petitioner (In Criminal Appeal No. 1027 of 2016).
Biuash Chandra Biswas, Advocate-on-Record-For the Petitioner (In Criminal Petition Nos.538-539 of 2016).
Mahmuda Begum, Advocate- on-Record-For the Petitioner (In Criminal Petition No. 342 of 2017).
Md Abdul Hai, Advocate-on-Record-For the Petitioner (In Criminal Petition Nos. 480-483 of 2016).
Md Abdul Hai, Advocate-on-Record-For the Petitioner (In Criminal Petition Nos. 320, 336, 422-25 of 2016).
Zahirul Islam, Advocate-on-Record-For the Petitioner (In Civil Petition No.1330 of 2016).
Ajmamul Hossain Senior Advocate with Omar Sadat, Advocate instructed by Madhumaloti Chowdhury) Barua, Advocate-on-Record-For the Respondent No.2 (In Criminal Appeal Nos.11-16 of 2017).
Abdur Razzaque Khan, Senior Advocate instructed by Sufia Khatun, Advocate-on-Record-For Respondent No.2 (In Criminal A No.17 of 2017).
Mahbubey Alam, Attorney-General instructed by Mr M Asrafuzzaman Khan, Advocate-on- Record-For Respondent No.1 (In Criminal Appeal Nos.11-17 of 2017).
None Represented-Respondent (In Criminal Petition No.533 of 2017).
Md Abdul     Hai, Advocate-on-Record-For Respondent No.2 (In Criminal     Petition No.600 of 2016).
Md Abdul     Hai, Advocate-on-Record-For Respondent No.1 (In Criminal Petition No.600 of 2016).
Madhumaloti Chowdhury Barua, Advocate-on Record-For Respondent No.2 (In Criminal Petition No.493 of 2016).
None Represented-Respondent No.1 (In Criminal Petition Nos.493 of 2016).
None Represented-Respondents (In Criminal Petition Nos.494-497 of 2016).
Madhumaloti Chowdhury Barua, Advocate-on-Record-For Respondent No.2 (In Criminal Petition No.498 of 2016).
None Represented-Respondent No.1 (In Criminal Petition No.498 of 2016).
None Represented-Respondents (In Criminal Petition Nos.499-502 0f 2016).
None Represented-Respondent (In Criminal Petition Nos.538-39 of 2016).
Omar Sadat, Advocate instructed by Madhumaloti Chowdhury Barua, Advocate-on-Record-For Respondent No.2 (In Criminal Petition Nos, 480-483 of 2016).
None Represented-For Respondent No.1 (In Criminal Petition Nos.480-483 of 2016).     .
Omar Sadat, Advocate instructed by Madhumaloti Chowdhury Barua, Advocate-on-Record-For Respondent No.1 (In Criminal Petition Nos.320, 336, 422-425 of 2016).
None Represented-Respondent No.2 (In Criminal Petition Nos.320, 336, 422-425 of 2016).
None Represented-Respondent (In Criminal Petition Nos.1027 of 2016).
None Represented-Respondent (In Criminal Petition No. 342 of 2017).
Sufia Khatun, Advocate-on-Record-For Respondent No.3 (In Civil Petition No.1330 of 2016).
None Represented-Respondent Nos. 1-2 & 4-5 (In Civil Petition No.1330 of 2016).
Majed Rossain vs State, 17 BLC (AD) 177; Goddum vs Andhra Bank, AIR 2000 AP 379; Anil Kumar Sahane vs Gulshan, 4 SCC 424 and Ashok Yeshant vs SM Nighosakar, AIR 2001 SC 1315; Indus Airways Pvt. Ltd, vs Magnum Aviation Pvt. Ltd., 12 SCC 539 ref.
Judgment
Hasan Foez Siddique J : All the appeals and the Criminal Petitions have been filed raising the common question of law and facts. Accordingly, we have heard all the appeals and petitions together and they are being disposed of by this common judgment.
 (To be continued)    

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