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MADRAS HIGH COURT
M. Venugopal, J.
P. Jayamadha —Appellant
versus
L. Kumar —Respondent
Crl.O.P. No.26616 of 2016 in Crl.A.Sr. No.51436 of 2016
Decided on 18.4.2017
Counsel for the Parties:
For the Appellant:Mr. P.G. Perumal Pandian, Advocate
For the Respondent:Mr. J. Franklin, Advocate
IMPORTANT POINT
Cheque can be issued for discharge of other person’s debt or liability.
Order
Headnote:(A) Negotiable Instruments Act, 1881—Section 138 read with Section 87—Criminal Procedure Code, 1973—Section 255(1)—Dishonour of cheque—Material alteration in instrument—Acquittal of accused—Every unsubstantial alteration is not a material alteration—It is only such alteration(s) as would adversely affect interests of other side which can be called material—If drawer of cheque himself altered cheque for validating or re-validating the same instrument, he cannot take advantage of it later by saying that cheque became void as there is material alteration thereto—Judgment of acquittal passed by trial Court is free from any flaw—Petition dismissed. (Paras 20, 21 and 28)
(B) Negotiable Instruments Act, 1881—Sections 138 and 139—Criminal Procedure Code, 1973—Section 378(4)—Dishonour of cheque—Acquittal of accused—Cheque can be issued for discharge of other person’s debt or liability—Legally enforceable debt or liability would have reference to nature of debt or liability and not the person against whom debt or liability can be enforced—Section 138 of Negotiable Instruments Act does not in any way preclude power of an individual from owning up other person’s liability or insist that cheque should be one drawn to discharge liability of Drawer—If a probable view based on legal and admissible evidence is arrived at by trial Court, then, High Court would not interfere with Judgment of acquittal passed by Trial Court concerned. (Paras 24 to 27)
Result: Criminal Original Petition dismissed.
M. Venugopal, J.—Heard the Learned Counsel for the Petitioner and the Learned Counsel for the Respondent.
2. The Petitioner/Appellant/Complainant has filed the instant Criminal Original Petition seeking ‘Grant of Special Leave’ to prefer an Appeal as against the ‘Judgment of Acquittal’ dated 28.09.2016 in C.C. No. 246 of 2015 passed by the Learned Judicial Magistrate No. II, Chengalpattu.
3. It transpires that the trial Court, in its Judgment at paragraph 11, among other things, had observed that ‘.. The Complainant (Petitioner/Appellant) either in her Legal Notice or in her Complaint or in her Proof Affidavit had not mentioned as to who made the corrections in Ex.P1 - Cheque’ and ultimately, came to the conclusion that in the present case, it was a question mark as to who made the aforesaid corrections in the cheque and opined that the cheque was a void one.
4. Moreover, the trial Court, at paragraph 14 of its Judgment, had proceeded to state that the averment to the effect that as per Sale Agreement, the Complainant gave a cheque for a sum of Rs.3,00,000/- to the Respondent/Accused and also paid a sum of Rs.1,00,000/- in cash for which no documents or evidence were produced/filed and therefore, the said fact was not proved and held that the Presumption under Section 139 of the Negotiable Instruments Act could not be raised in the present case. Therefore, the trial Court came to the consequent conclusion that the offence against the Respondent/Accused under Section 138 of the Negotiable Instruments Act was not established beyond reasonable doubt and finally acquitted him under Section 255(1) Cr.P.C.
5. Assailing the legality of the Judgment of Acquittal dated 28.09.2016 in C.C.No.246 of 2015 passed by the trial Court, the Learned Counsel for the Petitioner/Appellant/Complainant submits that the trial Court had failed to appreciate an admitted fact that the transaction was entered into between the Petitioner/Appellant’s wife and the Respondent’s (Accused) wife.
6. The Learned Counsel for the Petitioner/Appellant urges before this Court that the trial Court had misreading the evidence of P.W.1 and the averments of the Complaint. In fact, there appears to be a non-application of mind by the trial Court in acquitting the Respondent/Accused.
7. It is represented on behalf of the Petitioner/Appellant/ Complainant that the ingredients of Section 87 of the Negotiable Instruments Act, 1881 were not properly construed by the trial Court in a real perspective, which has finally resulted serious miscarriage of Justice.
8. The Learned Counsel for the Petitioner/Appellant/ Complainant, in regard to the plea of ‘Material Alteration’, contends that the trial Court should have perused the conspicuous signature of the Respondent/Accused in a proper fashion.
9. According to the Learned Counsel for the Petitioner/ Appellant, the trial Court immaterially perceived the significance of an Agreement of Sale entered into between the Petitioner/Appellant and the Respondent’s wife extensively attracts the existence of the legally enforceable debt or liability and that apart, the trial Court was not correct in assuming that there is no legally enforceable debt or liability in the absence of any substantial evidence produced and established by the Respondent/Accused.
10. In response, the Learned Counsel for the Respondent/ Accused submits that the subject matter of Ex.P1 - Cheque in issue itself is a fabricated one and before the trial Court, the Petitioner/ Appellant/Complainant (during her cross examination) had admitted that Ex.P1 - Cheque was altered by her with regard to the amount and also clearly admitted in her proof affidavit that the cheque was issued on 11.02.2016 itself and the same was in her possession from 11.02.2015 to 11.04.2015.
11. The Learned Counsel for the Respondent/Accused projects an argument that the Petitioner/Appellant/Complainant had stated that in her Complaint, she paid a sum of Rs.3,00,000/- towards advance for a
