IMPORTANT POINT
Change of date on the cheque so as to make the presentation of cheque in bank valid would amount to material alteration and if it was without consent of drawer and without authorization it would render the cheque void.

M.K. Mittal, J.—This appeal has been filed against the judgment and order dated 28.8.2004 passed by C.J.M., Varanasi in Criminal Complaint Case No. 4015 of 2004 under Section 138, N.I. Act (hereinafter referred to as an Act) whereby learned Magistrate acquitted the accused of the charge for which he stood trial.

2. Heard Sri. N.M. Sahai, learned Counsel of the Appellants, Sri Sameer Jain, learned Counsel for the opposite party No. 1, learned A.G.A. and perused the record.

3. Brief facts of the case are that the Appellants filed a criminal complaint under Section 138 of the Act alleging that complainant No. 2 was the employee of the complainant No. 1 Fragrant Leasing and Finance Company Limited and had been authorised to present the complaint. The complainant No. 1 used to provide financial assistance after completing the requisite formalities required for adjustment of loan. Accused took a loan of Rs. 11 lacs from complainant No. 1 and in order to repay the loan issued two cheque Nos. 8630 dated 31.12.2001 and 8629 dated 1.4.2002 for Rs. 6 lacs and 5 lacs (total 11 lacs) respectively with the clear understanding and stipulation that the cheques would be honoured and encashed on presentation. Complainant presented these two cheques at Central Bank of India, Lahurabeer Branch, Varanasi but the same were returned to the complainant on 1.7.2002 with the endorsement on covering memo ‘exceeded arrangement’ meaning thereby that the accused had issued the cheques knowing well that there was no sufficient fund in his account. It shows that dishonest intention of the accused to deceive the complainant. The complainant through legal registered notice dated 16.7.2002 called upon the accused to make payment of the amount of Rs. 11 lacs with interest @ 24% per annum and the cost of the notice Rs. 600/- within 15 days from the receipt of the notice but the accused did not make any payment. Thereafter the complaint was filed on 6.8.2002 as is clear from the order sheet.

4. The complainant examined Satish Kumar Saluja one of the directors of the Limited Company on 26.8.2002. The accused was summoned and he was examined by the learned Magistrate on 6.2.2003 and there he replied in affirmative to the question that in order to repay the loan taken by him, he had issued two cheque Nos. 8630 and 8629 as mentioned above. He also replied that the notice was received by him and he had also given a reply thereof. However, he also stated that he had issued post dated cheques as security for the loan and also admitted that he had not paid back the loan and would pay the same in installments.

5. In support of its case, prosecution led evidence and examined PW1 Satish Kumar Saluja and PW2 Raj Kumar, the complainant No. 2. They stated the prosecution case on oath. The complainant also filed two cheques, a memo of Bank statement of account, the Memorandum and Articles of the Association, the reply notice given by the accused and also a photocopy of the notice given by the complainant to the accused on 16.7.2002. The reply notice shows that the accused admitted having received the notice of the complainant dated 16.7.2002 on 19.7.2002. In reply notice, it has also been mentioned that he had issued two post-dated cheques for the security of the loan amount and that he was ready to pay the amount in installments. The accused was examined under Section 313, Cr.P.C. on 11.3.2004 and he denied having given any cheque. However, he did not adduce any evidence in defence.

6. Learned Magistrate on the basis of the evidence concluded that the complainant had not filed the carbon copy of the notice given to the accused and the notice had not been proved, the photocopy could not be taken into evidence and that the statement of the accused as given could not be read against him and that the cheques were given as security and not towards payments of the loan or debt. There was cutting in the dates of the two cheques and no explanation had been given in the complai