N.K. Balakrishnan, J.The plaintiff in a suit for money is the appellant. The suit was dismissed by the trial court and the appeal filed by him met with the same fate. According to the appellant, the respondent borrowed Rs. 1,50,000 on 20-8-2001, for which he issued Ext. A-1 cheque dated 15-12-2001, which on presentment was dishonoured due to insufficiency of funds, whereupon a notice was sent intimating the factum of dishonour. It was acknowledged by the respondent but no reply was sent. Hence the suit was filed.

2. The defendant refuted the allegations and contended that he had not borrowed Rs. 1,50,000 on 20-8-2001 nor did he issue Ext. A-1 cheque. The contention that the said amount was borrowed by him for construction of his house was also denied. It was stated by him that a sum of Rs. 75,000 was borrowed by him from the appellant during December, 1997 and then a signed blank cheque leaf was handed over by him to the appellant. It was further contended that out of the sum of Rs. 75,000, Rs. 25,000 and interest thereon was re-paid but the cheque was not returned. It was also stated that a reply was sent to the notice of dishonour received by him.

3. The plaintiff and three witnesses were examined as P.Ws. 1 to 4 and Exhibits A-1 to A-6 were marked. D.Ws. 1 to 3 were examined on the side of the defendants. The suit was initially decreed by the trial court. It was appealed against by the defendant. The appellate court remanded the matter for sending Ext. A-1 to an expert for comparison of the handwriting. Though the order of remand was challenged in F.A.O. No. 108/2009, that order was confirmed by this Court. After remand, Ext. C-1--the report of the expert was obtained. The learned Sub Judge, after considering the entire evidence, did not accept the plaintiffs case and hence the suit was dismissed. The lower appellate court concurred with the view taken by the trial court and thus the appeal was dismissed.

4. The following substantial questions of law have been framed:

(i) Whether filling up of a signed blank cheque leaf would amount to material alteration within the meaning of Section 87 of the N.I. Act

(ii) Whether Section 20 of the N.I. Act applies to cheque as well

(iii) Is there any implied authority to a person who receives a signed blank cheque leaf to fill up the same showing any amount as he likes and is it not in such circumstances, necessary to prove the actual transaction

5. The learned counsel for the appellant submits that the court below should not have accepted Ext. C-1 - the report of the expert to hold that "the person who wrote the subsequent writings marked Ext. A-1 to A-44 and S-1 to S-21 did not write the questions marked as Q-1 to Q-3". The courts below also over looked the fact that no reply was sent to the notice of dishonour sent by the appellant, it is argued. The fact that the defendant used to borrow money from the appellant was admitted. He had also admitted receipt of Rs. 75,000 on an earlier occasion and those aspects should have been considered by the courts below in the background of the fact that Ext. A-1 admittedly contains the signature of the respondent, it is further argued.

6. It is vehemently argued by the learned counsel for the plaintiff/appellant that the report was obtained from a private expert instead of sending the document to the Forensic Science Laboratory. The lower appellate court has given detailed reasons to negative the contentions so raised by the appellant. Evidence was given by the expert as to how he could compare the handwriting found in Ext. A-1 with the admitted/specimen handwriting of the defendant. There was no request on the part of the plaintiff to send the disputed document and other documents containing the admitted handwritings of the defendant to the Forensic Science Laboratory. Therefore, it was observed by the lower appellate court that it is only a desperate attempt made by the appellant to contend that P.W. 4 was not competent to examine the document and to give a report. The challenge against the correctness or acceptability of Ext. C-1 report put forward by the appellant deserves to be rejected, it is argued.

7. It is worthwhile to note that P.W. 4 had formerly worked as the Joint Director of Forensic Science Laboratory, Thiruvananthapuram. He had retired from that post. Therefore, the capability, efficiency or integrity of that officer cannot be questioned. The courts below after analysing the evidence rightly found the report and evidence given by D.W. 3, worthy of acceptance.

8. It was also argued by the learned counsel for the appellant that the direction made by this Court in the judgment in F.A.O. 108/2009 was not followed or complied with by the lower appellate Court. The argument proceeds on the premise that the lower appellate court has observed that the handwriting of the defendant to be sent for comparison must almost relate to a period as the disputed cheque, as otherwise, there will always be an attempt to deliberately change the handwriting. But the courts below had found that die respondent had taken earnest effort to get such documents but only because the documents were not available, the documents containing the handwriting of the respondent of the year 2007 were sent for comparison. Therefore, that also cannot affect the credibility or acceptability of Ext. C-1 report.

9. It is the specific case put forward by the defendant/respondent that he had handed over only a signed blank cheque leaf when he had borrowed Rs. 75,000 from the plaintiff/appellant in 1997. It is true that the case put forward by the defendant that a signed blank cheque leaf was handed over by him may not appear to be reasonable or probable, for, it is not the usual course of human conduct to simply handover a signed blank cheque leaf. But the fact remains that the mere admission of the signature contained in Ext. A-1 does not tantamount to proof of execution of the instrument. Admission of signature is one thing and the proof of execution is quite another. Since the execution of Ext. A-1 was specifically denied, the argument vehemently advanced by the learned counsel for the appellant that there is an admission of the execution of the cheque is factually incorrect and unsustainable in law. The admission is only to the effect that the respondent had handed over a signed unfilled cheque leaf to the plaintiff, that too in the year 1997.

10. The further argument advanced by the learned counsel for the appellant that there is admission of receipt of consideration is also palpably unsound and unacceptable. The contention specifically advanced by the respondent is that he had borrowed Rs. 75,000 in the year 1997. There is no admission with regard to the suit transaction. Therefore, the argument that there is admission regarding the receipt of money and the execution of the document is another untenable contention advanced by the appellant.

11. Since the execution of Ext. A-1 was specifically denied by the respondent, the burden is on the plaintiff to prove due execution of the document. True, the non-sending of a reply to the notice of dishonour sent by the plaintiff may be a circumstance to doubt the case put forward by the defendant, but at the same time the acceptability of the case would depend upon the totality of the evidence and circumstances obtained in this case. The burden is, no doubt, on the plaintiff to prove due execution of Ext. A-1.

12. The evidence given by P.W. 1 is to the effect that the cheque was brought by the defendant to the house of the plaintiff and from there the Plaintiff signed it. It was further stated in page 4 of the deposition of P.W. 1 that it was using the very same pen the defendant filled up the cheque and signed it. It was further stated by P.W. 1 that the defendant obtained the pen from P.W. 1 for that purpose and signed using that pen. P.W. 1 even goes to the extent of saying that the handwriting in Ext. A-1 is that of the defendant. But a perusal of Ext. A-3 would make it undoubtedly clear that Ext. A-1 was signed by using a blue ink ball pen whereas Ext. A-1 was filled up using a black ink pen. This aspect itself would falsify the evidence given by P.W. 1 that the defendant obtained the pen from P.W. 1 and filled up the same and signed it. The handwriting in Ext. A-1 does not appear to be that of the defendant. If, as a matter of fact, Ext. A-1 was filled up from the house of P.W. 1 at the time of the alleged transaction, then certainly P.W. 2 must have seen it. P.W. 2 says that he was present at the time of the transaction and he had also seen the defendant handing over the cheque to the plaintiff. If so, P.W. 2 must have seen the defendant writing/filling up the cheque and thereafter signing it But P.W. 2 has no such case. No question was put to P.W. 2 that Ext. A-1 cheque was written by the defendant from that house at the time of the alleged transaction. The version of P.W. 2 is that the pen was obtained by the defendant from P.W. 1 and then it was signed. P.W. 2 was not asked as to whether it was already a written up or filled up cheque that was signed by the defendant. Since the execution of Ext. A-1 was specifically denied it was for the plaintiff to elicit such answers from P.W. 2, if actually he was present to witness the transaction. But no such relevant question was put to P.W. 2 to contend that P.W. 2 had occasion to see the transaction or the execution and handing over of Ext. A-1 by the defendant to the plaintiff. No question was put to P.W. 1 also that the cheque was written up by the defendant in the presence of P.W. 2 and that P.W. 2 had seen the transaction. Therefore the evidence given by P.W. 2 did not rightly infuse confidence in the mind of the courts below. Simply because Ext. A-1 contains the signature of the defendant it cannot be held that the plaintiff has discharged the burden cast on him to prove the execution of Ext. A-1.

13. P.W. 3 was the Assistant Transport Officer of the K.S.R.T.C, where the defendant had worked. He was examined to state that there would be record in the office of the K.S.R.T.C. which would contain the signature and handwriting of the defendant. No such records could be produced by P.W. 3. It is not for P.W. 3 to give opinion as to whether there would be change in the style or manner of writing after a person becomes old. It is the common knowledge that there would be difference in the handwriting of an old man especially when his handwriting in the suit document is compared with a paper written about 10 or 15 years prior to that particular date. It was vehemently argued by the learned counsel for the appellant that the documents sent to the expert for comparison were of the year 2007 and not of the year 2001. Explanations were already given why such documents were obtained and sent to the expert.

14. It is pertinent to note that a mere glance at Ext. A-1 would make it clear that Ext. A-1 was filled up in the handwriting of a person who, in all probability, cannot be a person who signed Ext. A-1. A perusal of this document would also make it clear the Ext. A-1 could not have been filled up at the time when it was signed by the defendant. One more aspect assumes importance. This cheque leaf could not have been taken from a cheque book issued in or after 2000. It must have been issued in 1999, 1998 or 1997. According to the defendant only a signed blank cheque leaf was given to the plaintiff in the year 1997. Only the letters one and nine (19) are seen, which would indicate that the two succeeding letters could be of the year 1999 or prior to that. It is contended that it could not have been of the year 2000 or 2001, as it appears on the face of Ext. A-1.

15. It is worthwhile to note that the defendant who was examined as D.W. 1 has stated in clear terms that he had obtained only Rs. 75,000 in December, 1997 and that towards that transaction, Rs. 25,000 towards the principal and Rs. 37,000 towards the interest were paid. No doubt there are no documents evidencing the same. But the evidence given by D.W. 1 that he had only handed over a signed blank cheque leaf in December 1997 when he had borrowed Rs. 75,000 from P.W. 1 and that it was subsequently tilled up by the plaintiff without the consent or authority of the defendant, could not be-effectively controverted.

16. There was no case when D.W. 1 was in the witness box that Ext. A-1 was already a cheque filled up by P.W. 1 himself and it was signed in the presence of P.W. 1 and P.W. 2. There was also no case that Ext. A-1 was filled up from the house of the plaintiff in the presence of P.W. 1 and P.W. 2. No case was put to D.W. 1 in cross-examination that Ext. A-1 was filled up by the defendant in his own handwriting from the house of the plaintiff at the time of the alleged transaction. There was no case that the transaction took place in the presence of P.W. 2. Hence, it would be an exercise in futility to contend that due execution of Ext. A-1 could be proved by the evidence of P.W. 1 and P.W. 2.

17. The only admission made by P.W. 1 is that Ext. A-1 contains his signature. No case was put to D.W. 1 that it was filled up by him. Even though no question was put to D.W. 1 with regard to the same still, it was stated by D.W. 1 in re-examination also that Ext. A-1 was not filled up in his handwriting. Therefore, that also would scuttle the plea raised by the plaintiff that there is evidence of due execution of Ext. A-1. D.W. 2 was examined on the side of the defendant to contend that a sum of Rs. 75,000 was borrowed by the defendant from the plaintiffs house and immediately prior to the handing over of a sum of Rs. 75,000 the defendant had handed over to the plaintiff a blank signed cheque leaf it was asserted by D.W. 2 that at the time when it was handed over to the plaintiff, it was blank, but for the signature of the defendant. That part of the evidence given by D.W. 2 was also not effectively challenged by the plaintiff. There is only the suggestion that D.W. 2 was giving evidence to support the defendant.

18. In view of what is stated above, it could be found that though the defendant could not prove that any reply was sent to the notice sent on behalf of the plaintiff intimating the factum of dishonour, that will not in any way help the plaintiff to prove the due execution of Ext. A-1, the burden of which undoubtedly rests on the plaintiff The evidence given by P.W. Rs. and P.W. 2 was not sufficient to prove the due execution of Ext. A-1, in the light of the circumstances pointed out earlier. Therefore, simply because Ext. A-1 contains the signature of the defendant it cannot be held that the plaintiff could discharge the burden of proving the due execution of Ext. A-1. Since the evidence regarding the execution of the document itself is found to be highly doubtful, it is difficult to hold that the plaintiff had lent Rs. 1,50,000 to the plaintiff on 20-8-2001. No evidence worthy of acceptance was produced regarding the same. Therefore, the courts below cannot be found fault with for not accepting the plaintiffs case.

19. The lower appellate court has relied upon the Supreme Court decision in Seth Loonkaran Sethiya and Others Vs. Mr. Ivan E. John and Others, following para 1378 of Volume 12 of Halsburys Laws of England where it was held:

A material alteration according to this authoritative work, is one which varies the right, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty same provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed.

The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed.

Here, the specific case was that what was given by the respondent to the appellant was a signed blank cheque leaf. It is not a case of insertion, alteration, erasure overwritings or interlineation of the name of the payee, date, amount payable etc. The decision cited supra was rendered while a deed of partnership was considered by the Supreme Court. It was not pertaining to a negotiable instrument. There was no erasure, interlineation, alteration or otherwise in this case and as such the aforesaid decision has no application to the facts of this case.

20. The decision of the Division Bench of this Court in State Bank of India Vs. Kerala State Co-operative Marketing Federation and Others has also been relied upon by the learned counsel for the respondent. That was a case dealt with u/s 87 of the Negotiable Instruments Act. There it was held:

Under Section 87 of the N.I. Act, any material alteration of a negotiable instrument renders it void as against any person being a party to that instrument it the time of such alteration provided he himself has not consented to such alteration. The following alterations are to be material, that is alteration of the date, the sum payable, the time of payment, the place of payment, the signature of the drawer and the original payee or addition or deletion or change of the name of the payee therein without the consent of the drawer.

The question involved in the case cited supra was not whether subsequent filling up of a signed blank cheque would amount to material alteration. Here, there was no erasure or change of name of the payee, amount payable or the date of the instrument. Therefore, the aforesaid decision also has no application to the facts of this case.

21. The decision in Jawahar Trading Corporation Vs. K.K. Ramadas and Others, has also been relied upon by the learned counsel for the respondent. The facts of that case are also entirely different. In that case defendants 1 to 4 were not executants when first defendant signed the instrument. It was found that new stamps were affixed subsequently and names of defendants 2 to 4 were inserted later and their signatures were obtained later. Corresponding corrections were also there. The main question there, was whether without a specific pleading of a party complaining of such material alteration can he sustain that plea. Since the material alterations were so loudly obtrusive in that case, it was held that even though material alteration occurring in Section 87 of the N.I. Act was not specifically mentioned in the written statement, there were sufficient indications to hold that what was pleaded was material alteration. The material alteration in that case was so clear and not a case like the present one.

22. Here, it is not a case where Ext. A-1 was a document already filled up showing the name of the payee and subsequently the name of that payee was altered. Therefore, there was no alteration of the name of the payee. Similarly, the cheque was not already filled up showing the sum payable cither in words or figures and subsequently it was altered changing the amount payable. Therefore, there was no alteration of the sum payable also. No date was put on Ext. A-1 at the time when it was stated to have been given by the defendant to P.W. 1. Therefore, it is also not a case where the date or time of payment was changed. There is no insertion, interlineation, overwriting, erasure or anything of that sort so as to attract Sec. 87 of the N.I. Act. As such, the argument vehemently advanced by the learned counsel for the defendant that there is a material alteration coming under Sec. 87 of the N.I. Act, does not stand to rhyme reason or common sense.

23. The Division Bench of this Court in Bhaskaran Chandrasekharan Vs. V. Radhakrishnan, held that when a cheque was issued for valid consideration, with no dispute regarding signature, amount and name, it cannot be said that 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 a cheque is admittedly issued without putting the date and when the payee 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 beneficiary and get it encashed.

24. The above said decision was followed by this court in Capital Syndicate Vs. Jameela and Another, where it was held that subsequent putting of the date in an undated cheque would not always amount to material alteration rendering the instrument void u/s 87 of the N.I. Act. The subsequent insertion of the amount and the name of the payee without the consent of the drawer would amount to material alteration rendering the instrument void u/s 87 of the Act. Here, it is not a case of subsequent insertion of the amount or name of the payee but what was handed over according to the respondent was a signed blank cheque leaf. As such, the aforesaid decision also has no application to the facts of this case.

25. The decision of the Delhi High Court in Disha Constructions Vs. State of Goa, has been relied upon by the learned counsel for the appellant to fortify his submission that when a blank cheque is signed and handed over it means that the person signing it has given implied authority to the holder of cheque to fill up the blank which he has left and that once he admitted his signature on the cheque he cannot escape his liability on the ground that the same has not been filled in by him. It was held that the person signing it and handing it over, has given implied authority to the holder of the cheque to till up the blank. It all depends upon the facts of the case.

26. In the decision in Moideen Vs. Johny, a Single Bench of this Court has held that when a blank cheque is issued by one to another, it gives an authority on the person, to whom it is issued, to fill it up at the appropriate stage with the necessary entries regarding the liability and to present it to the bank.

27. The decision in Joseph, Joseph Vs. Gladis Sasi, has also been referred to here. In that case a Single Bench of this Court has held that the admission of signature in a blank cheque is not admission of execution of the cheque. In that case it was contended that what was given was a signed blank cheque. Hence, it was held that the said admission will never amount to an admission of execution of the cheque. There is no dispute regarding the proposition that admission of signature does not tantamount to execution of document. Of course, it may have to be explained by the person who signed and handed over a blank cheque leaf as to the circumstances under which a signed blank cheque leaf happened to be in the possession of the plaintiff. But that will not absolve the liability of the person who banks upon that instrument to prove that it was a duly executed instrument because admission that it was signed does not amount to execution of that instrument. The decision in Santhi v. Mary, 2011 (3) KLT 273 also is in line with the decision cited supra.

28. Section 6 of the N.I. Act defines a cheque as:

A cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form."

(other parts being not relevant are not extracted here)

29. Section 5 of the N.I. Act defines a bill of exchange as:

A bill of exchange is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument.

Therefore, a combined reading of Sections 5 and 6 would make it clear that an instrument would be a cheque if only it contains the particulars as mentioned in the two sections referred to above. If drawees name is not written in the instrument, that instrument cannot be termed to be a bill of exchange. Therefore, if it is only a singed blank cheque leaf, it cannot be said to be a cheque within the meaning of Section 6 of the Act.

30. Section 13 of the N.I. Act defines a negotiable instrument as:

A negotiable instrument means a promissory note, bill of exchange or cheque payable either to order or to bearer.

Explanation to Section 13 also would make it clear that it must be an instrument containing all the particulars referred to earlier.

31. If only it is a negotiable instrument within the meaning of Section 13 of N.I. Act, Section 87 would have any application. If it was only a signed blank cheque leaf, it can not be termed a negotiable instrument, and if so the question of effecting material alteration of that paper (signed cheque leaf) does not arise.

32. Section 20 of the N.I. Act reads:

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.

33. If it is only a signed blank cheque leaf that was handed over it cannot be said to be a paper stamped in accordance with law relating to negotiable instruments. As such the contention that, whether it is wholly blank or filled up partly making it an incomplete document and that handing over of the same would give authority to the holder thereof to make or complete the instrument as the case may be for any amount specified therein and not exceeding the amount covered by the stamp, cannot be sustained. So far as a cheque is concerned, if it is a signed blank cheque leaf it may be filled up showing any amount without any restriction what so ever and if that be so, how Section 20 of the N.I. Act can be applied to a case of cheque. But if it is a paper stamped, it can be filled up showing the amount not exceeding the amount covered by the stamp. That is the rationale behind why Section 20 is specifically made applicable to stamped documents/instruments.

34. The stamp that is to be affixed in the paper intended to be issued blank, must be according to the law in force in India at the time it is so signed and delivered. The requirements that are to be satisfied to attract Section 20 as to stamp would make it clear that Section 20 cannot apply to cheques, which in India do not require to be stamped. So far as the case on hand is concerned, if the case of the defendant is accepted, what was handed over by him to the plaintiff was only a signed cheque leaf.

35. It was held by the Division Bench of this Court in C.T. Joseph Vs. I.V. Philip and Others,

So far as Section 20 of the Negotiable Instruments Act is concerned, according to us, it docs not apply because S. 20 applies only with regard to inchoate negotiable instruments. So far as the cheques are concerned, they dont require any stamp under the Stamp Act in force.

36. In that case it was argued before that Court that, even if Sec. 20 of the N.I. Act does not apply, the general principles of law of estoppel will apply. But it was held that for the application of such principles, it is highly necessary that the cheque was filled up as authorised. As in that case, here also, I scanned the oral and documentary evidence but here it is not the case of the plaintiff that what was given to him was a signed blank cheque leaf and that he was authorised to fill up the same and accordingly he filled it up showing that amount. There is also no evidence worthy of acceptance to show the actual lending of Rs. 1,50,000 as averred by the plaintiff.

37. It can be argued that when a person takes a bill in an incomplete form, he cannot be a bona fide holder for value since it can only be said that he has taken a piece of blank paper and not a bill and that he can take it as a bill only under the authority given to his transferor. Section 20 of the Act would make it clear that there can be no material alteration of a cheque leaf only for the reasons that it was subsequently filled up. But at the same time it cannot be said that when ever a signed blank cheque leaf is given, it gives authority to the holder to fill up the same according to his whims and fancies. Filling up of a signed blank cheque leaf may not attract Section 87 of the N.I. Act, for, there was no insertion, interlineation, erasure, alteration etc., because there was no completed negotiable instrument within the meaning of Sections 5, 6 and 13 of the N.I. Act. Therefore, neither Section 20 nor Section 87 applies to a blank signed cheque leaf. If so, the question must turn round to the actual execution of the instrument.

38. With regard to instruments other than a cheque, an implied authority is given to the holder at time of entrusting it to fill up the same. There may be instances where an implied authority is given to the person, at the time of entrusting a signed blank cheque containing the signature of the drawer of the cheque, to fill the columns therein.

39. If a principal or employer deputes his agent or employee to purchase an article and if the dealer fills up that signed blank cheque leaf showing the exact amount covered by the bill showing the price of the article sold then it cannot be said that what was handed over by the drawer of the cheque is only a signed blank cheque leaf. In such cases an implied authority to the trader/seller of the article to fill up the cheque leaf can certainly be inferred. Similarly, there may also be cases where at the time of settlement of accounts, a particular amount was found payable by the drawer of the cheque to the other party and if a signed blank cheque entrusted to be filled up later is filled up in tune with the accounts, showing the actual amount payable by the drawer of the cheque to the other party, then also it can be said that there was the implied authority to fill up the signed blank cheque leaf. There may be such instances where the sum is ascertainable and the signed blank cheque leaf is given to fill up the same after ascertaining the same. In such cases there would be no difficulty to infer implied authority given by the drawer. Simply because the cheque is seen filled up or written in the handwriting of another person it can not lead to a conclusion that only a signed blank cheque leaf was given. The person signing the cheque may have difficulty due to many reasons to write the cheque and it might have been filled up by the payee or by another. In such cases it cannot be said that what was handed over was only a signed blank cheque leaf. In all such cases the ultimate conclusion may depend upon the proof of the transaction and execution of the instrument. It must also be held that when it is a case that only a signed blank leaf was handed over by the defendant, then he must offer satisfactory explanation as to the circumstance under which the signed blank cheque happened to be handed over. Considering the totality of the evidence and circumstances, it is for the court to draw the inference as to whether it was given with an implied authority to fill up the same showing the amount ascertained or ascertainable to discharge the debt or liability. Therefore, there may be such cases where implied authority can be inferred. But the contention that when a signed blank cheque leaf is handed over, it can never be filled up and that if it is filled up it would amount to a material alteration within the meaning of using Sec. 87 of the N.I. Act, does not stand to rhyme or reason. Similarly, the contention that Sec. 20 of the N.I. Act is applicable to an unfilled or blank cheque leaf also cannot be accepted. It would depend upon the facts of each case. Therefore, it is neither a case which attracts Sec. 87 of the N.I. Act nor is it a case where the plaintiff can rely upon Sec. 20 of the N.I. Act and contend that as a signed blank cheque leaf is given it gives an authority to fill up the same according to the whim and fancy of the payee.

40. So far as the case on hand is concerned it has already been found that there is no acceptable evidence to prove due execution of Ext. A-1. The defendant has stated that he had handed over a signed blank cheque leaf to the plaintiff when he had borrowed some amount in 1997. The fact that part of the amount due as per that transaction was still due does not amount to an admission of execution of Ext. A-1 and handing over of the same at the time and place as stated in the plaint or as deposed to by P.W. 1. The evidence given by the plaintiffs witness also is not in consonance with the case advanced by the plaintiff that there was due execution of Ext. A-1. The courts below were not inclined to accept the case of the plaintiff. For the reasons already stated, I am not inclined to interfere with the findings entered by the courts below that the plaintiff is not entitled to get a decree for the amount as prayed for in the suit.

In the result this Regular Second Appeal is dismissed. No costs.

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