TaxTMI 
TaxTMI 
2025 (4) TMI 946
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder Section 138 of the Negotiable Instruments Act (in short 'NI Act'). It was asserted that parties were known to each other. The complainant is the sole proprietor of Chaman Trading Company. The accused purchased the construction material from the complainant, and he issued a cheque of Rs.4,90,000/- to discharge his liability. The complainant presented the cheque, which was dishonoured. The accused failed to pay the amount despite the receipt of the notice; hence, the complaint was filed before the learned Trial Court against the accused for taking action as per the law. 3. Learned Trial Court put the notice of accusation to the accused. The statement of the complainant was recorded on 27.10.2017. 4. The accused/applicant filed an application (Annexure P3) asserting that the complainant had tampered with the cheque issued to him as a security. The accused had made the payment of Rs.1,90,000/- to the complainant. He demanded the cheque from the complainant, and the complainant replied that he had misplaced the cheque somewhere. The accused had filled the amount in the figure. He had also signed the cheque. The complainant filled the amount in words by himself. He tampered with t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l for the respondent/complainant. 9. Mr Ravinder Singh Chandel, learned counsel for the petitioner, submitted that the learned Trial Court erred in dismissing the application. The accused had categorically asserted in his application that the amount of Rs. 1,90,000/- was altered to read as Rs.4,90,000/-. This constituted a material alteration. Any material alteration in the cheque will make it bad. The accused had no other option but to request the Court to send the document for examination by the Forensic Expert. He relied upon the judgments passed in G. Sonamuthu vs. Barsha Beevi, 2013 (02) MAD CK 0167, G. Someshwar Rao versus Semineni Nageshwar Rao and anr in Criminal Appeal No. 1353 of 2009 decided on 29.07.2009, T Nagappa versus Y.R. Muralidhar in Cr. Appeal No. 707 of 2008 decided on 24.04.2008, Raj Kumar versus M/s Ram Krishan and ors, in Cr.MMO no. 255 of 2015 decided on 06.05.2016 and Saroj Kumari versus Harminder in Cr.MMO no. 806 of 2023 decided on 05.12.2023 in support of his submission. 10. Ms. I.S. Chandel, learned counsel for the respondent/complainant submitted that the learned Trial Court had rightly dismissed the application. The amount was mentioned in the word....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3358;്ച് മാത്രം.(Eleven thousand and seventy-five only). If it is so taken there is a substantial difference between Rs. 11075/- and Rs. 11775/-. But in order to make it in tune with the amount mentioned in figures namely, 11775/- the words എഴുനൂറ് (seven hundred) is inserted between പതിനൊന്ന് ആയിരം (eleven thousand) and എഴുപത്തിയഞ്ച് (seventy-five) . Necessarily, this is an insertion or correction which requires an attestation by the drawer with his full signature. It is absent on the cheque. It is in these circumstances, PW2 has deposed that he would not have honoured the cheque even if, there was sufficient funds in the amount of the accused. Therefore, the conclusion of the court below that there is material alteration in the cheque cannot be said to be unjustified. It is also a probable conclusion. In such circumstances, I find no reason to reverse the acquittal." 14. Punjab and Haryana High Court also held in Om Parkash ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....principle laid down in that decision was followed by a Division Bench of this Court in Bhaskaran Chandrasekharan v. Radhakrishnan (1998 (1) KLT 881) it was held that alteration of the date in the cheque may be a material alteration. In this case, the amount written in the figures were corrected. That will amount to material alteration. So, I hold that there is a material alteration of the Exhibit P1 cheque. 16. It was further held that any material alteration in the cheque would make it void. It was observed: "11. The next question to be considered is what exactly is the effect of material alteration. Section 87 of the Negotiable Instruments Act deals with the effect of material alteration. It reads as follows: - "87. Effect of material alteration. - Any material alteration of a negotiable instrument renders the same void as against anyone 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. Alteration by indorsee.- And any such alteration, if made by an indorsee discharges his indorser from all liability to him in respect of the consideration thereo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r a contract to which he never agreed. The burden is on the plaintiff in such circumstances to show that the alteration was not improperly made. An alteration which varies the rights, liabilities or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained is a material alteration. To make an alteration material it is not necessary that it should adversely affect the party who raised that plea". 14. It is true that the decision was rendered in a suit filed by the holder of the Cheque against the drawer. That principle is applicable to criminal cases also. Under Section 138 of the Negotiable Instruments Act to make a person criminally liable the cheque must have been one issued in discharge of whole or part of debt or liability. Further, the cheque should have been dishonoured for insufficiency of funds or that it exceeds the amount arranged to be paid from the account. Still further, the debt must be a legally recoverable debt. Explanation to Section 138 makes it very clear. It reads as follows:- "138. Dish....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntends that section 87 is attracted only if the alteration has been proved to have been made by the holder himself and this fact must be pleaded and proved by the defendant. He went to the length of saying that in the instant case even if the alteration had been made by the minor's next friend or guardian, it would not affect the claims of the minor. This interpretation is obviously too narrow and is not justified by the wording of section 87. In our opinion, the correct interpretation of section 87 of the Negotiable Instruments Act is that the alteration which has the effect of making the instrument void should have been brought about by the plaintiff or by anyone with his consent or on account of his negligence. If the alteration is brought about by an accident, or by some stranger who came in possession of the instrument in an unauthorized manner, then the instrument would not be rendered void." 18. It was further held that the burden to prove that the alteration was made by the signatory is upon the holder of the instrument. It was observed: "Shri R. K. Pandey contended that it was necessary for the defendant to plead that the alteration was brought about by the plai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hayalal v. Sitaram [20 NLR 76.] it was held that a material alteration made by, or with the consent of, one party, but without the consent of the other party, makes the instrument void and disentitles the party responsible for the alteration from enforcing it. The Court observed in that case that where the plaintiff relies upon an altered or suspicious instrument "the law casts a heavy onus on him to explain the alteration and to show when it was made". The following observations from Halsbury's Laws of England, Volume 10, sections 764 and 765, at page 431, were relied upon: "An alteration made while the instrument is in the custody of one parry, not made with his knowledge or consent, has the same effect in avoiding the instrument as if made by him, on the principle that he who has the custody of an instrument made for his benefit is hound to preserve it in its original state." In Pachkodi's case (supra) the same view has been taken regarding the burden of proof by observing that: "These documents were altered in his possession and were produced from his custody. He had to explain when and how the alteration was made." We have no doubt that the burden of provin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rsee discharges his endorser from all liable to him/her in respect of the consideration thereof in the considered opinion of this Court. 20. It was further held that the accused is to be granted a reasonable opportunity to prove his defence. It was observed: "23.A. At this stage, this Court deems it appropriate to cite the decision of this Court in R. Jagadeesan v. N. Ayyasamy, 2010 (1) MWN (Cr.) DCC 97: 2010 (1) CTC 424: Crl. R.C. 49 of 2009 and K. Meignanavel, 2010 (1) LW (Crl.) 165 (Crl.R.C.50/09) at Special Pages 167, 168 & 169, in paragraph Nos. 6 to 10, it is observed and laid down as follows: "6. There can be no denial of the fact that the Accused needs to be afforded a fair trial to exhaust all the defences available to him. Fair trial is the sine qua non of Criminal jurisprudence and the same has been recognised as a fundamental right under Article 21 of the Constitution of India. To prove that the handwriting was not made by him or that the signature was not made by him, the Accused can very well request the Court to forward the document for expert opinion...." 21. It was held that alteration in the Negotiable Instruments Act if it changes its legal character is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....P1-Cheque was taken by the Respondent/Accused in regard to the figure of Rs. 50,000/- purposely changed as Rs. 5,50,000/- in order to provide an opportunity to the Respondent/Accused to prove her case in the manner known to law and in accordance with law since a valuable right of the Respondent/Accused cannot be taken away so lightly and does not find any infirmity or illegality in the order of the Trial Court while allowing the Crl.M.P. No. 526 of 2012 filed by the Respondent/Accused as the Petitioner to obtain an opinion of the Handwriting and Forensic Scientific Department Expert to find out whether the figure '5' is added before the figure of Rs. 50,000/- or not in the original figure of Rs. 50,000/- and also to find out whether it is two different types viz. Rs. 50,000/- and '5' are separate type. Consequently, the Criminal Revision Petition fails. 24. In the present case, if any authority was conferred upon the accused, it was to fill the amount in the words as was mentioned in the figure. He had no authority to alter the figure and, thereafter, to mention the altered amount in words. Section 18 would have been material had the amount in the figure and the words been writt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice." The right of an accused under sub-section (2) of Section 243 of the Code of Criminal Procedure, 1973 is, thus, not an absolute one. He cannot take recourse thereto for the purpose of delaying the proceedings. An application filed by an accused must be for subserving the cause of justice and not for subverting the same. In Kalyani Baskar [(2007) 2 SCC 258 : (2007) 1 SCC (Cri) 577] this Court held as under: (SCC p. 262, para 12) "12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpos....