TaxTMI 
TaxTMI 
1985 (2) TMI 310
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....The defence in the written statement was that the plaintiff is a Tawaiff and the defendant, who is a man of affluence, was visiting regularly. There was no need or necessity for him to borrow the amount. Secondly, whenever he visited her house he was consuming liquor and when he was under the influence of intoxicant drinks, may be, his signature was obtained. So, even if there is any execution of such document, it was not done in consciousness. That apart, it is also averred that the pro-note is materially altered as the date has been later inserted. The further allegation was that she had no capacity to lend the money. For all these reasons, the suit be dismissed. The first Court framed 2 issues, viz., : "(1) Whether the defend....
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....tions 87 and 118 of the Negotiable Instruments Act, read as under : "Sec. 87 : Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties : and any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this Section are subject to those of Ss. 20, 49, 86 and 125." S. 118 : Until the contrary is proved, the following presumptions shall be made :-- (a) that every negotiable instrument was made or drawn for considerat....
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....s been altered or erased, but also a new insertion, (see A. Subba Reddy v. Neelapa Reddi, . 7. The second aspect, which is more crucial, is -- who should discharge the burden of proving that the document is materially altered. This too is well settled that the person, who is in the custody of the document subsequent to its execution, should there be any alteration, has to discharge the burden of establishing that it is not altered. 8. In A. Subba Reddy v. Neelapa Reddi, (supra) this Court held :-- "The general rule in English law followed in India is that a party having custody or control of a document produced in evidence must explain the alteration. When the instrument on its production appears to have been altered, it is a....
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.... Also held : "where an instrument appears to be materially altered the law naturally casts a heavy burden on the plaintiff to explain the alteration and show when it was made. Ordinarily the party who presents a negotiable instrument which is an essential part of his case in an apparently altered and suspicious state, must fail, from the mere infirmity or doubtful complexion of the instrument unless it can satisfactorily explain the existing state of the document... The plaintiff in his deposition denies any correction. He has no explanation to offer in case it is found that the date appears to be materially altered. In the absence of any explanation on behalf of the plaintiff who seeks the enforcement of the document, it ....
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....ned by the plaintiff. If that be so, the instrument must be held to be void. 11. In view of this, it is needless to consider as to whether consideration has passed on to the defendant. In fact, it is a question to fact. This Court will be chary to interfere with the concurrent findings of facts. 12. The learned counsel for the respondent sought to contend that, even if there is material alteration in the instrument. Ex. A. 1 and if on that score the instrument is held to be void, still it will be open to the plaintiff to rely on Ex. A. 2, which is a receipt executed by the defendant acknowledging the receipt of the sum of Rs. 8,000/- and recover the same. Reliance was placed on a Full Bench decision of this Court in L. Sambasiva Rao v....