IMPORTANT POINT
The court upheld the trial court's acquittal, finding that the cheque was invalid due to material alteration, thus failing to establish charges under Section 138 of the NI Act.

ORDER :

ARVIND KUMAR VERMA, J.

This Acquittal appeal under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) is filed by the appellant/complaint being aggrieved by the impugned judgment dated 05.02.2019 passed in Complaint Case No. 4345/2015 by the learned Judicial Magistrate First Class, Durg, district Durg whereby the respondent/accused has been acquitted of the charges under Section 138 of the Negotiable Instruments Act, 1881 (for short “NI Act”).

2. Brief facts of the case are that the complainant/appellant and the accused/respondent are shopkeepers in the same market and are known to each other. In the year 2015, accused/respondent borrowed Rs. 2,50,000/- from the appellant for some personal work and he gave a cheque of Rs. 2,50,000/- to the complainant/appellant on 20.05.2015. It is alleged that thereafter when the appellant presented the cheque on 22.02.2015 in the bank, it was dishonored on account of insufficient balance. The appellant sent a legal notice on 04.06.2015 which was received by the accused/respondent but even after receiving the notice, he did not deposit or return the amount. It is alleged that the accused/respondent failed to pay the amount to the complainant and therefore the complainant filed a case before the Judicial Magistrate First Class, Durg, District Durg. However, the learned Magistrate has disposed of the complaint stating that there was overwriting in the amount (in figures) mentioned in the cheque Ex.P-1 and that no document has been produced regarding borrowing of loan of Rs. 2,50,000/- by the accused/respondent and the complainant was not able to prove the charge against the accused under Section 138 of the NI Act and acquitted him of the charges.

3. Learned counsel for the appellant/complainant submits that the Judicial Magistrate has not properly appreciated the evidence of the complainant and the documents submitted by him before passing the judgment. He submits that the acquittal of the accused/respondent is improper, incorrect and bad in the eyes of law. He submits that the trial court ought to have considered the signatures of the respondent on the cheque. Lastly, he submits that the finding recorded by the learned Judicial Magistrate is perverse, erroneous and contrary to law.

4. On the other hand, counsel for the accused/respondent submits that in the space meant for writing the value of the cheque in figures, the drawer has overwritten the figure on the cheque and had initiated above it. Therefore the correction duly acknowledged by the drawer will not amount to material alternation to attract Section 87 of the NI Act. The return of cheque stating “alternation on instrument other than date filled” will attract the offence under Section 138 of the NI Act.

5. Learned counsel for the respondent further submits that in this case, the cheque was presented for collection on 20.05.2015 and same was returned on 22.05.2015. It is the case of the complainant that the accused has no sufficient fund in his account and alteration in date figures/words requires drawers signature while issuing the cheque. The correction if not duly endorsed by the drawer will amount to material alternation. The claim of the respondent that the cheque is void due to material alternation is sustainable.

6. Heard learned counsel for the parties and perused the record with utmost circumspection.

7. The short point involved in the present case is whether the alternation in the subject cheque will attract Section 87 of the NIA Act, if not, whether return of cheque for that reason will not attract offence under Section 138 of the NI Act.

“Section 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 mad