TaxTMI 
TaxTMI 
2026 (1) TMI 844
X X X X Extracts X X X X
X X X X Extracts X X X X
....lso been thrown to order dated 10.06.2022, passed by the learned trial Magistrate, whereby cognizance of the offence has been taken and process has been issued against the petitioner. 2) It appears that the respondent has filed a complaint alleging commission of offence under Section 138 and 142 of Negotiable Instruments Act against the petitioner before the Court of learned trial Magistrate. In the complaint, it is alleged that the petitioner owes an amount of Rs. 14.00 lacs to the respondent and in connection with liquidation of the said amount, he had issued cheque bearing No.29633156 dated 11.05.2022, for an amount of Rs. 14.00 lacs payable at J&K Bank Branch Unit Harmain, Shopian. When the said cheque was presented for its encashmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) Notice of this petition son was sent to the respondent, but despite service, nobody has appeared on his behalf. 8) I have heard learned counsel for the petitioner and I have also perused record of the trial Magistrate. 9) The issue that falls for determination in this case is as to whether dishonour of a cheque on account of alteration made in the cheque amount would constitute an offence under Section 138 of the Negotiable Instruments Act. 10) The issue as to in what contingencies the offence under Section 138 of the Negotiable Instruments Act would be constituted upon dishonour of a cheque has been deliberated upon by the Supreme Court in the case of M/s Lakshmi Dyechem v. State of Gujarat & Ors., (2012) 13 SCC 375. It has been....
X X X X Extracts X X X X
X X X X Extracts X X X X
....awer changing his specimen signature given to the bank or in the case of a company by the company changing the mandate of those authorised to sign the cheques on its behalf. Such changes or alteration in the mandate may be dishonest or fraudulent and that would inevitably result in dishonour of all cheques signed by the previously authorised signatories. There is in our view no qualitative difference between a situation where the dishonour takes place on account of the substitution by a new set of authorised signatories resulting in the dishonour of the cheques already issued and another situation in which the drawer of the cheque changes his own signatures or closes the account or issues instructions to the bank not to make the payment. So....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration." 11) From the foregoing analysis of the legal position, it is clear that so long as an act or omission on the part of the drawer of the cheque is intended to prevent the cheque being honoured, the dishonour would become an offence under Section 138 of the Negotiable Instruments Act. Therefore, in a situation where the drawer of a cheque intentionally appends a different signature on the cheque, which does not match with his specimen signature available in the bank, the offence under Section 138 of the Negotiable Instruments Act would be co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he issue as to which of the parties has made alteration in the cheque, is a question of fact which can be determined only during trial of the case. 14) In my aforesaid view I am supported by the decision of the Supreme Court in the case of Veera Exports vs. T. Kalavathy, (2002) 1 SCC 97. In the said case, the Supreme Court has, after taking note of the provisions contained in Section 87 of the Negotiable Instruments Act, observed as under: "...The first paragraph of Section 87 makes it clear that the party who consents to the alteration as well as the party who made the alteration are disentitled to complain against such alteration e.g. if the drawer of the cheque himself altered the cheque for validating or revalidating the sam....