TaxTMI 
TaxTMI 
TaxTMI 
2013 (2) TMI 950
X X X X Extracts X X X X
X X X X Extracts X X X X
....his report. 3. That a part, the Trial Court has ordered that an Examination Report is to be filed by finding of as to whether the numerical letter of Rs. 50,000/- in Ex.P1-Cheque has been written with signature in the same ink and also further to ascertain whether the numerical Number 5 seen in the details of Rs. 50,000/- has been written and other details in the same ink and also to find out whether the numerical Number 5 has been added subsequently before the figure of Rs. 50,000/- and resultantly allowed the Miscellaneous Petition. 4. Assailing the correctness of the order passed by the Trial Court in Cr. M.P. No. 526 of 2012 in C.C. No. 239 of 2012, the Revision Petitioner/ Complainant has fixed the instant Criminal Revision Petition before this Court as an aggrieved person. 5. According to the Learned Counsel for the Revision Petitioner/ Complainant the impugned order dated 3.7.2012 passed by the Trial Court in Cr. M.P. No. 526 of 2012 in C.C. No. 239 of 2012 in directing Ex. P1-Cheque signature being sent for examination of a Handwriting Expert, etc., is an invalid and illegal one in the eye of law. 6. The learned Counsel for the Revision Petitioner/Complainant ur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....opinion in regard to the amount of Rs. 50,000/- has been changed as Rs. 5,50,000/- and other blanks are filed up by the Complainant. 11. The crux of the controversy dispute centering between the parties is that the Cheque bearing No. 365151 contains two different figures and before the figure of Rs. 50,000/- the figure of 5 is added and then the amount is written in words which have to be investigated and experimented. 12. The learned Counsel for the Petitioner/Complainant submits that the presumption prescribed by the Section 139 of the Negotiable Instrument Act really includes the existence of a legally inclusive of both are liable and to lend support to his contention relies on the decision of Hon'ble Supreme Court in Rangappa v. Sri Mohan, 2010 (2) MWN (Cr.) DCC 5 (SC) : 2010 (4) CTC 118 (SC) : 2010 (3) MLJ (Crl.) 547 (SC), wherein it is held thus: "When the Accused raises a probable defence which creates doubts about the existence of a "legally enforceable debt", the prosecution can fail. If no such defence is placed, the order of conviction is justified." 13. However, the learned Counsel for the Respondent/Accused submits that Ex.Pl-Cheque suffers from t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 certainly some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed". (b) In order between K.K. John v. Alan Papali Coram, in Crl. A. No.174(A) of 1998, dated 11.8.2004, the Kerala High Court in Paragraph Nos.4 to 6 has held and observed as follows: "4. The Counsel for the Accused submits that going by Section 18 of the N.I. Act the banker will take into account only the amount written in words for the purpose of paying cash. Necessarily, that portion was written in the blank Cheque by the Complainant which amounts to substantial material alteration. It is further submitted that even in the amount written in figures there is material difference in two ones proceedings the figure 775. This also reveals that there was material alteration in the figure portion as well. Deposition of PW2, the bank Manager also substantiated his case. PW2 had stated that even though the Cheque had been bounched for want of sufficient funds, the cash ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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; 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 thereof." 6. PW1 has produced two letters Exhibits P15 & P16 written by the Accused. The Cheque was sent along with Exhibit P15. The Appellant was also produced exhibits P4 & P6 which showed the consignment. I have perused the letters written by the Accused. What is stated in the Exhibit P15-Letter is that he can present the Cheque after one month. In Exhibit P16 he requested for further time of 15 days. These aspects cannot amount to give consent to put the amount in the blank column and also the date. The Supreme Court in Jusum Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd., laid down the ingredients that have to be satisfied for making out a case under Section 138 of the Act. It is clear from the first ingredient mentioned a person must draw a Cheque on the account maintained by him in a Bank for pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the Cheque deserves to be sent to the expert. The decision in Francis v. Pradeep, 2004 (2) KLT 1080 is not authority for the proposition that merely because the signature in the Cheque is admitted, it is not necessary in any case to forward the Cheque to the expert for comparison. The facts of this case will have to be considered carefully. I have adverted to this aspect in the decision in Bindu v. Sreekantan Nair, 2007 (1) KLT 525. The decision is Francis v. Pradeep, 2004 (2) KLT 1080 cannot, in the facts and circumstances of this case, be a sufficient justification to refuse to send the Cheque to the expert. 4. The learned Counsel for the Respondent/Complainant submits that the attempt is unnecessary and is calculated to delay and protract the proceedings. It is easy for the Court to see through such an attempt to delay and protract the proceedings. If ultimately it were found that there is no material alteration and the Cheque was issued for the due discharge of a legally enforceable debt/liability and the Accused is culpably responsible under Section 138 of the N.I. Act, an appropriate direction for payment of compensation including a direction to pay interests on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....It was further held as follows: "A material alteration, is one which varies the rights, liabilities or legal position of the parties, as 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 and as such void, or which may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed". The 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 material alteration. So, I hold that there is material alteration of Ext.P1-Cheque. 9. 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 follow: "87. Effect of material alteration .- Any material alteration of a negotiable ins....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he instant case, since the Accused preferred application Exhibit 48, requesting to send the documents at Exhibits 29/1 & 29/2, bearing disputed handwriting of the Complainant, along with the admitted handwriting of the Complainant, for obtaining Handwriting Expert's opinion, in fact, which should have been allowed by the learned Trial Court or, at least, by the learned Sessions Court, in the Revision to meet the ends of justice. However, simultaneously, there is no doubt that the Accused should not be permitted to protract the trial unnecessarily. Hence, the apprehension posed by the Respondent No.1, in respect of protracting the trial by the Accused, can be met with by giving specific directions to the Handwriting Expert to submit the expert's opinion within stipulated period and thereby, endeavor can be made to achieve the spirit of Section 143, sub-sections (2) & (3), of the Negotiable Instruments Act. 19. As regards argument canvassed by the learned Counsel for Respondent No. 1, in respect of Section 73 of the Evidence Act, it is material to note that both the said documents Exhibits 29/1 & 29/2 were confronted to the Complainant during cross-examination and ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... document No.1 below Exhibit 29 i.e. "chit of transaction", and document No.2 below Exhibit 29 i.e. "diary of the transaction", and the admitted handwriting of the Complainant which is to be obtained by the learned Trial Court before it from the Complainant, be sent to the Government Handwriting Expert for obtaining the expert's verification/opinion in respect of the disputed handwriting on Exhibits 29/1 & 29/2 and the said Government Handwriting Expert is directed to submit his opinion within a period of one month from the date of receipt of the aforesaid documents to the said office, scrupulously, and the Petitioner/Accused is directed to deposit the amount of Rs. 1,000/- (Rupees one thousand) tentatively before the learned Trial Court towards charges of the handwriting examination, and the learned Trial Court is also requested to expedite hearing of the said trial after receipt of the said report of the Handwriting Expert". (g) The learned Counsel for the Respondent/Accused cites the decision of the Hon'ble Supreme Court in between Loonkaran Sethia v. Ivan E. John and others, AIR 1977 SC 336, it is held thus: "(B) Deed - Construction - Material alterati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for insufficient funds. He submits that the Accused had failed to comply with the demands made in the statutory Notice necessitating prosecution. He submits that the ingredients constituting offence under Section 138 of the N.I. Act are established. The learned Counsel further submits plethora of case laws on this subject would show that material alterations in the Cheque would not render the Cheque unenforceable. Of course, he has not cited or produced any citations but refers to the finding of the Appellate Court as unsustainable. 8. Keeping in mind what is urged against the finding of the learned Appellate Judge, I have perused the records in supplementation thereto. It needs no mention that the Complainant is the one who had initiated the legal battle to punish the Respondent with a penal action. Had he succeeded, the Respondent would have been sentenced to imprisonment even upto a term of two years as prescribed by Section 138 of the N.I. Act. Necessarily, we expect in such transaction evidence worthy of acceptance to establish the charge. In this endeavor, the Complainant tendered evidence as PW1 and relied on seven documents but the Accused thwarted all these attemp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the Accused and to reach his own conclusion with the assistance of the expert. The Appellant is entitled to rebut the case of the Respondent and if the document viz., the Cheque on which the Respondent has relied upon for initiating Criminal proceedings against the Appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the Handwriting Expert has deprived the Appellant of an opportunity of rebutting it. The Appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" included fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and as such non-est. The technical defence or absence of plea should not drive the Court on such occasion especially with reference to the contention and evidence. 18. Ordinarily, 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. Any such alteration if made by an endorsee discharges his endorser from all liable to him/her in respect of the consideration thereof in the considered opinion of this Court. 19. It is useful for this Court to refer to the contents of the Petition in Crl. M.P. No.526 of 2012 (filed by the Respondent/Accused) which proceeds to the effect that in never borrowed amount from the Complainant and she has not issued the Cheque No. 365151 in her favour and actually borrowed the amount of Rs. 50,000/- from her husband's brother Abdul Kareem and issued two Cheques bearing Nos. 365151 & 365152 of her account at Canara Bank, College Road, Nagercoil and further that while issuing the Cheque he filled the figure as Rs. 50,000/- (Rupees fifty t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o different type i.e. 50,000/- and '5' are separate type. 22. It is to be noted that in the decision of Hon'ble Supreme Court in Union of India v. Jyoti Prakash Mitter, AIR 1971 SC 1093, at 1098 to 1100, in paragraph Nos. 10 to 12, it is observed as follows: "10. After consultations between the Ministry of Home Affairs and the Ministry of Law, the Home Ministry sent certain old writings of the year 1904, 1949, 1950 & 1959, and requested the Director to determine the age of the writing of the disputed horoscope and marginal note in the almanac by comparison. The Director on April 17, 1965 wrote that it "was impossible to give any definite opinion by such comparisons particularly when the comparison writings were not made with the same ink on similar paper and not stored under the same conditions as the documents under examination", and that it "will not be possible for a document expert, however reputed he might be, anywhere in the world, to give any definite opinion on the probable date of the horoscope and the ink writing in the margin of the almanac". 11. After receiving the second report from the Director, the Ministry of Law raised the question ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed to the Home Secretary on September 1, 1965, praying that the President may call for all papers and documents, if not already sent for and grant him an audience, "If at all necessary". The Respondent also wrote a letter on that day submitting that the evidence tendered by him was "conclusive" and there was no question of adducing any further evidence or any evidence in rebuttal. He also submitted that the entry in the Bihar and Orissa Gazette (declaring him successful at the matriculation examination) was erroneous and concluded the letter that all relevant documents be placed before the President, and that the President "may be graciously pleased to grant "him" an audience for the purpose of deciding the question of his age". 12. The file of the Respondent's case was then submitted to the President. On September' 16, 1965 the President referred the matter to the, Chief Justice of India asking him for his advice. On September 28, 1965 the Chief Justice recommended that the age of the Respondent be decided on the basis that the Respondent was born on December 27, 1901. The Chief Justice set out in detail all the evidence including the reports of Dr. Iyengar, Dire....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t: "A summary of the case will be found at slip 'Z'. The Chief Justice of India has offered his advice in his minute ........ after going into the relevant material, H.M. (Home Minister) may recommend to the President,that the age Shri J. P. Mitter may be determined in accordance with the advice of the Chief Justice of India." Home Minister and the Prime Minister countersigned that endorsement. The file was then placed before the President on the same day i.e. September 29, 1965. The President recorded his decision that he accepted "the advice tendered by the Chief Justice of India and "decided" that the age of Sri Jyoti Parkash Mitter should be determined on the basis that he was born on the twenty-seventh December nineteen hundred and one". 23. Also, this Court points out the decision in Yash Pal v. Kartar Singh, AIR 2003 P&H 344, wherein, in paragraph No.5 observed as under: "A perusal of the aforementioned provision shows that a discretion has been vested in the Civil Court to get any scientific investigation conducted only if it thinks necessary or expedient in the interest of justice. The basic rationale of the provision is that if the op....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s opinion. The term expert denotes, persons specially skilled in the particular field. Under Section 45 of the Evidence Act, it is for the Court to first of all take a decision as to whether a particular individual is an expert in the particular field for a particular purpose. In such a way, if it is found that there is an expert who can find out the age of the writings on a document by means of any scientific method, certainly he would fall within the ambit of Section 45 of the Evidence Act to offer such opinion. But the learned Counsel for the Petitioner would submit that there is no such scientific method available for offering any such opinion. 7. In order to ascertain the correctness of the said statement, this Court had requested the learned Additional Public Prosecutor Mr. N.R. Elango to request either the Director or the Assistant Director, Document Division, Forensic Science Department, Chennai to be present before this Court to explain the position. Accordingly, today, Mr. A.R. Mohan, Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu, Chennai is kind enough to be present before this Court. According to him, he is the Hea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the age of the writings. 10. Now I have to consider the judgments relied on by the learned Counsel on either side. In T. Nagappa's case, 2008 (5) SCC 633, I have to state that the question whether the age of the writings could be scientifically examined and any opinion in this regard could be offered never came up for consideration before the Hon'ble Supreme Court. In that case, the Hon'ble Supreme Court was concerned with the right of the Accused to have fair trial so as to send the document for comparison by an expert. It was never argued before the Hon'ble Supreme Court that there are no experts available to examine the age. Therefore, the Judgment of the Hon'ble Supreme Court relied on by the Respondents is not in any manner helpful to them. The learned Counsel for the Petitioner has relied on the Judgment of this Court in S. Gopal's case wherein Hon'ble Mr. Justice M. Jeyapaul has held that there is no method to find out the age of the document with scientific accuracy. However, the learned Counsel appearing for the Respondents would submit that this Judgment was prior to the Judgment of the Hon'ble Supreme Court. He would therefore s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 9 of the Negotiable Instrument Act to be a Holder in Due Course, one must be a Holder for consideration. The instrument should have been transferred to her/him before it becomes overdue. Further one must be transferee in good faith and that she should not have any reason to believe that there was any defect in the title of the transferor. Really speaking the 'Holder in Due Course' includes person who comes into possession of the Cheque. It is necessary for an individual/Holder in Due Course that he/she should get possession of the instrument (if payable too or to the order of the payee. If at the time of negotiation of an instrument the holder has fully knowledge that it was issued containing with blanks, he /she is put on enquiry as to the authority or the extent of the authority of her endorser to complete the instrument. When an incomplete the note is given to an agent with authority to fill the blank, the authority to complete the note must be exercised before the termination of the agency. 28. Section 20 of the Negotiable Instrument Act, 1881 authorises that where a pronote is signed and delivered to another person on a properly stamped and either left blank or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 118 of the Negotiable Instruments Act. In view of the specific stand taken by the Respondent/Accused in Crl. M.P. No. 526 of 2012 (Petitioner) that she issued the Cheques and filled the figure as Rs. 50,000/- and that the amount in words were not written by her and that the Cheques her signature and the figure amount of Rs. 50,000/- were there, etc., and also that in view of the categorical plea taken by her that the figure of Rs. 50,000/- was changed as Rs. 5,50,000/- and other blanks were filled up by the Complainant, (although it is disputed by the Revision Petitioner/Complainant), this Court on the basis of the facts and circumstances of the case, opines that obviously a plea of material alteration in Ex.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 Respon....