1999 (2) TMI 717

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....he month of December; 1994, the defendant informed the plaintiff about a flat offered for sale for Rs. 7,00,000/-. Due to financial constraints, the plaintiff expressed his inability to pay the entire consideration in a lump sum. However, on the defendant's suggestion to furnish some security in the form of bearer cheques for finalising the deal, the plaintiff issued the following bearer cheques in favor of the defendant. CHEQUE NO. DATE BANK AMOUNT 969772 NIL HONG KONG BANK 2,00,000/- 969773 NIL HONG KONG BANK 2,00,000/- 969774 NIL HONG KONG BANK 2,00,000/- 969775 NIL HONG KONG BANK 1,00,000/- 3. According to the plaintiff, he deliberately omitted to mention the date of iss....

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....aid cheques in favor of the defendant. A cheque is a negotiable instrument and under Section 9 of the Act the payee is the holder in due course. The defendant, as a holder of the said cheques, is entitled to their benefits. Section 72,73,75A and Section 84 of the Act are specific provisions which protect the interest of the payee under the cheque and also retain the liability of the drawer. Under Section 118(g) of the Act, the presumption is that the payee had given valuable consideration for the cheque issued in his favour; Under Section 139 of the Act, it is incumbent upon the Court to presume that the cheque issued was in discharge of debt or other liability. In the instant case, the rebuttable presumptions under Section 118(g) and 139 o....

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....es against the plaintiff. Judged from any angle, the plaintiff is not entitled to grant of declaration sought in the present suit. The declaratory reliefs No.(a) and (b) sought by the plaintiff cannot be granted as these cheques have already been used by the defendant and further the defendant as a holder of these cheques is entitled to their benefit. 7. The plaintiff has also claimed the relief of injunction restraining the defendant from using the said cheques. It has to be borne in mind that the present suit has been instituted after institution of a criminal case against the plaintiff under Section 138 of the Act. The reliefs claimed in this suit are in substance for an injunction restraining the defendant from prosecuting the crimin....