TaxTMI 
TaxTMI 
2019 (8) TMI 1872
X X X X Extracts X X X X
X X X X Extracts X X X X
....hiya by the name Gangotri Granite. The accused-applicant and her husband have been purchasing spare parts of crusher from the Company of opposite party no. 2 and had good business relationship. On 7.12.2012, accused-applicant had purchased few spare parts of the crusher comprising of a total amount of Rs. 36,67,028/- and the accused-applicant had assured that payment would be made within one or two days. The accused-applicant being old acquaintance, the opposite party no. 2 agreed to sell those articles on credit and the accused-applicant went away after taking the spare parts. On 12.12.2012, applicant came to the Office of Archna Traders and provided a Cheque No. 323113 bearing Account No. 10657584358 of the amount of Rs. 36,67,028/- which was issued in the name of M/s. Archna Traders and then she went away. The opposite party no. 2 presented the said cheque in his SBI Bank, Medical College Branch, Jhansi, which was returned without making payment on 14.12.2012 disclosing reasons in column no. 16 "insufficient funds", thus the said cheque got dishonoured, whereafter opposite party no. 2 sent a registered notice through his counsel on correct address of the applicant on 22.12.2012,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as till that time the value of the share was not ascertained. Thereafter, the husband of the applicant decided to purchase some share in his own name and remaining shares were transferred to the above named, Vikas Agarwal. In view of the said transfer of shares, the above named Amarnath Spat Private Ltd. is rather named as Gangotri Granite Private Company. After transfer of the shares, husband of the applicant demanded the blank cheque but Alok Kankane with whom, serious differences arose during the transfer of shares, Company did not return the said cheque in order to harass the husband of the applicant and the applicant herself misused the same by filing aforesaid complaint in collusion with the opposite party no. 2, who is partner with him in the different Firm. After having come to know about the present complaint, the Department has also filed a criminal Complaint Case No. 203 of 2013 pending in the court of ACJM Ist, Court No. 6, Jhansi. The trial court has erroneously passed the impugned order as the complaint was not maintainable because cheque is not an instrument enforceable under law. It has failed to appreciate that the complainant/opposite party no. 2 has filed complai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t is further stated that in the story narrated in paragraphs 10 to 13 of the affidavit, the same has been cooked up by the applicant in order to deny payment of the cheque in question and it is also mis-conceived that the present complaint is counter blast to the proceedings launched by opposite party no. 2 against the applicant. The present complaint has been filed against the signatory of the cheque and not against the Company and its Directors. The signatory had not denied her signatures on the impugned cheque and lastly it is stated that the pleas taken by the applicant could be seen only at the time of trial when defence is taken by the accused-applicant. 7. At the time of argument, learned counsel for the applicant has mainly emphasised three points that the cheque in question is not a legally enforceable instrument in the light of guidelines issued by the R.B.I. dated 6.10.2010, clause 9 of which prohibits changes/corrections in the cheque. The said guidelines have been affirmed in Central Bank of India Vs. Ravindra and other, (2002) 1 SCC 367 and also in Fragrant Leasing & Finance Company Ltd. & Anr. Vs. Jagdish Katuriya & Anr., 2007 Cri. L.J. 3880. 8. Clause 9 of the sai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....account of said cutting is that the said kind of cutting is impermissible only in respect of cheques cleared under the Cheque Truncation System (CTS) and not for those cheques which are cleared under other clearing arrangement such as MICR clearing, Non-MICR clearing, over the counter collection (for cash payment) or direct collection of cheques outside the Clearing House Arrangement", but, I find no force in the argument of learned counsel for the opposite party no. 2 because the established practise of Bank is that any alteration in original state of a cheque such as date, amount, payee's name, changing word "order" to bearer appearing after payee's name or in endorsement is called material alteration. All material alteration must have drawer's approval with his full signature (not initials) where the alteration are made. One of the mandatory features of the CTS-2010 cheque format prescribed by R.B.I. is that no changes/corrections should be carried out on the cheques (other than for date validation purposes, if required) for any change in the payee's name, courtesy amount (amount in figure) or legal amount (amount in words) etc., the fresh cheque forms should be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d-applicant because in the present case also cheque is stated to have been returned for insufficient amount and not for any alteration or cutting in the cheque but no explanation has come on record that why the impugned cheque was received by the opposite party no. 2 despite the said cheque having alteration in the amount in words without any signature of the executant of the cheque and why it was not insisted by him at that very moment that the said cheque was void under the provisions of Section 87 of the Act due to the said cutting particularly when the amount was so big. He would be treated to be in possession of the said cheque soon after the same was issued to him and when he came in possession of the same, if any alteration in the said cheque happened, the burden would lie only on him to explain as to under what circumstances the said cutting took place but in counter affidavit, no such disclosure has been made, which renders the impugned cheque to be a void instrument in the light of Section 87 of the Act. 17. Next argument raised by the learned counsel for the applicant is that the impugned cheque has not been issued in discharge of any legal debt, which burden was upon t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y which took place between the opposite party no. 2 and the said Company, hence the said Company ought to have been impleaded as an accused through its Director. The applicant had nothing to do with the said Company, who is only wife of one of Directors of the said Company i.e. Sri Dinesh Chandra Singhal, and hence she could not have been made accused in this case, to this argument, learned counsel for the opposite party no. 2 has rebutted by saying that the cheque in question has been issued by the accused-applicant and not by her husband. It is likely that she might have issued said cheque in order to clear the debt of the Company in order to evade the tax, which is a separate offence, which matter this Court may refer to the Appropriate Authorities. 22. Reliance is placed by the learned counsel for the opposite party no. 2 on K.N. Beena Vs. Muniyappan and another, (2001) 8 SCC 458. In this case, it is held by the Apex Court that the High Court appears to have proceeded on the basis that the denial/averments in respondent's reply to the legal notice were sufficient to shift the burden of proof on to the appellant-complainant to prove that the cheque was issued for a debt or ....