The need for evidence to rebut the presumption under the NI Act and the inadmissibility of appreciating evidence at the stage of quashing proceedings under Section 482 Cr.P.C.

ORDER

Manoj Kumar Ohri, J. (Oral). - The present petition has been preferred by the petitioners under Section 482 Cr.P.C. seeking quashing of Complaint Case No. 4322/2020 filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act') as well as the summoning order dated 25.03.2021 passed by the learned MM-05 (NI Act), Central District, Tis Hazari Courts, Delhi.

2. Learned counsel for the petitioners has submitted that the impugned summoning order was passed without application of mind. He has primarily contended that the cheque in question was materially altered by the complainant by changing the date for revalidation without the consent and knowledge of the petitioners. He has further submitted that in view of the mandate of Section 87 NI Act, the cheque had became void. In support of his submissions, learned counsel for the petitioners has placed reliance on the decision of the Supreme Court in Veera Exports v. T. Kalavathy reported as (2002) 1 SCC 97.

3. Learned counsel for the petitioners also submitted that in the present case, the offence under Section 138 NI Act was not made out as the cheque in question was initially honoured and the amount credited in the account of the complainant. However, later, on protest lodged by the petitioners, the amount was transferred back from the complainant's account to that of petitioner No. 1. An SMS received from the State Bank of India is also placed on record in this regard. Lastly, it is contended that the cheque in question being signed by petitioner No. 2 and no specific allegations having been levelled against petitioner No. 1, the Trial Court ought not to have summoned petitioner No. 1.

4. I have heard learned counsel for the petitioners and also gone through the case record.

5. Brief facts shorn of unnecessary details are that the complainant had rented out the 3rd floor of the property bearing No. 3C/36, New RohtakRoad, Delhi to petitioner No. 1. In furtherance of disputes, a legal notice dated 30.12.2019 was sent by him claiming a sum of Rs.2,91,929/-from petitioner No. 1 towards the reimbursement of losses suffered by him. Petitioner No. 1 sent a reply dated 23.01.2020 to the complainant's notice denying his liability, due to which the complainant filed a suit for recovery of a sum of Rs.2,93,555/- against petitioner No. 1, which is stated to be pending before the concerned Court. Although petitioner No. 1 initially denied his liability, he later on contacted the complainant and re-handed over a cheque for Rs.55,000/- dated 22.12.2019 drawn on State Bank of India, East Park Road, New Delhi signed by petitioner No. 2 who is the mother/authorized signatory of petitioner No. 1 by changing the date on the said cheque. On presentation, the cheque amount was initially credited but, later on, because of protest made by petitioner No. 1, the said credit entry was reversed by the Bank in favour of petitioner No. 1. It is stated that petitioner No. 1 had earlier given the cheque in issue to the complainant as security deposit.

6. The short issue involved is of applicability of Section 87 NI Act to the facts of the present case and whether the proceedings pending before the Trial Court are liable to be quashed in view of the submissions made on behalf of the petitioners. At this stage, I deem it apposite to refer to Section 87 NI Act, which reads as under:-

"87. Effect of material alteration.Any material alteration of 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;

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.

The provisions of this section are subject to those of sections 20, 49, 86 and 125."

7. Section 87 NI Act consists of two parts. The first