The main legal point established in the judgment is that a mere scoring off of the word 'bearer' on a cheque does not indicate an intention that the cheque shall not be transferable, and therefore, the cheque remains a negotiable instrument.

K. Sukumaran, J.

1. These appeals challenge the decrees of the court below in money claims based on a cheque endorsed in favour of the plaintiff.

2. Various contentions were taken to resist the plaint claim; even to the extent of stating that the cheques were forged. The cheques in any case were accommodation cheques and therefore no money was payable - was yet another contention. These contentions were rightly negatived by the court below. It was found that a plea regarding the cheque being an accommodation cheque was not even indicated in the written statement. In one case, a reply notice was sent. But a plea of an accommodation cheque was conspicuously absent In other cases, no replies were sent at all.

3. The 2nd defendant was the person competent to speak about the nature of the cheque. He shied away from the witness box. We are in agreement with the view taken by court below in the light of the evidence, materials and circumstances.

4. Even assuming that that is an accommodation cheque, the suit could be rightly decreed. The legal position is explained at page 354 of "The Negotiable Instruments Act" by Bhashyam and Adiga, 14th Edition.

5. The rejection of the contention relating to forgery by the court below, has not been seriously canvassed. The burden in that regard is heavy on the defendant; the burden has not been sustained at all.

6. One other contention not pleaded in the written statement but raised in the course of the arguments before the court below, was pressed before us. The contention,-based on some features of the cheque as referred to hereinafter - had been repelled by the lower court. Yet, no specific contention was indicated in the memorandum of appeal. That notwithstanding, arguments were heard on that question.

7. The thrust of the appellants' contention was that when the word 'bearer' had been scored off in the cheque, it lost its negotiability and then ceased to be a negotiable instrument. According to learned counsel, the scoring off Of the word 'bearer' manifested an intention of the maker to annihilate the negotiability of the document. If it has ceased to be a negotiable instrument, neither S.50 nor 51 will have any application - so proceeded further argument. Counsel referred to the history of the amendment to the Negotiable Instruments Act, 1881. The background history, according to him, would justify his contention that the scoring off of the word 'bearer' or 'order' was sufficient to exclude the instrument from the category of a negotiable instrument as defined in the Act.

8. We have necessarily to refer to the relevant statutory provision, to consider that contention. 'Negotiable instrument' is defined in S.13. The first sub-section gives a definition as meaning a promissory note, bill of exchange or cheque payable either to order or to bearer. At first blush, it may appear that when the word bearer is scored off and when there is no word 'order', the instrument will not answer the description of a negotiable instrument. That will, however, be overlooking the specific term of Explanation (i) which reads:

"A promissory note, bill of exchange or cheque is payable to order which is expressed to be so payable or which is expressed to be payable to a particular person, and does not contain words, prohibiting transfer or indicating an intention that it shall not be transferable."

(emphasis supplied).

Under the Explanation a cheque payable to order will take in (1) such a cheque expressed to be so payable and (2) a cheque payable to a particular person, provided that it satisfies a negative condition. That condition is that the cheque should not contain words prohibiting transfer or indicating an intention that it shall not be transferable.

9. In the present case, Mathai Baby will be the particular person to whom cheque is payable when that name is mentioned in the cheque Ext. A20 and others. It will satisfy the former limb of the section. The further question is about the existence of a prohibition ag