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Judges : K.A.ABDUL GAFOOR
Kunjamma Cheriyan - Appellant
Versus
Soloman.Meenathethil Veedu - Respondent
Case No : CRL.A.No.174 of 1998(A)
Decided On : 08/11/2004
Advocates Appeared :
For the Appellant: K.K. John, Advocate. For the Respondent: Alan Papali, M.P. Prabhanandan, Advocates.
Section 138 - Negotiable Instruments Act - The court found that the appellant failed to prove the offence under Section 138 of the N.I. Act due to material alteration in the cheque, which was a probable conclusion based on the evidence presented.
Fact of the Case:
The appellant initiated prosecution against the respondent for the offence under Section 138 of the Negotiable Instruments Act, alleging that a cheque issued by the accused bounced after being issued in consideration of a loan. The accused claimed the cheque was a blank one being misused by the complainant.
Finding of the Court:
The trial court concluded that the case put forth by the accused was more probable, and the appellant's appeal against the acquittal was dismissed based on the finding of material alteration in the cheque.
Issues: The issues revolved around the validity of the cheque, the presumption under Section 118 read with Section 139 of the N.I. Act, and the rebuttal of the presumption by the accused.
Ratio Decidendi: The court's decision was influenced by the interpretation of Section 18 of the N.I. Act, which states that the banker will honor a cheque based on the amount written in words, and the evidence of material alteration in the cheque presented by the bank manager.
Final Decision: The appeal failed, and the acquittal of the accused was upheld by the court.
Based on the provided legal document, the key points are as follows:
The case involves an appeal against an acquittal in a criminal matter under the Negotiable Instruments Act, specifically Section 138, concerning a cheque bounce incident (!) .
The appellant alleged that the respondent issued a cheque for Rs. 11,775 in consideration of a loan, which bounced due to insufficient funds, and statutory notice was not responded to (!) .
The respondent claimed the cheque was a blank one being misused by the complainant and argued there was material alteration in the cheque, including modifications in the amount written in words and figures, which affected the validity of the cheque (!) (!) .
The trial court found that there was a material alteration in the cheque, particularly in the amount written in words and figures, which was not attested by the drawer, leading to the conclusion that no offence under Section 138 was made out (!) (!) .
The court noted that the presumption under Section 118 and 139 of the N.I. Act, which favors the complainant, could not be rebutted by the accused due to the evidence of material alteration and the absence of proper attestation (!) (!) .
The court also considered the interpretation of Section 18 of the N.I. Act, which states that the banker will honor a cheque based on the amount written in words, and found that the alterations in the cheque's amount and the payee's name constituted substantial material alterations, justifying the conclusion that the cheque was not valid (!) (!) .
The appellate court upheld the trial court's decision, affirming that the conclusion of material alteration was justified, and accordingly dismissed the appeal (!) .
Overall, the court's decision was based on the interpretation of relevant sections of the N.I. Act and the evidence indicating material alteration in the cheque, leading to the conclusion that the offence under Section 138 was not established (!) (!) (!) .
Please let me know if you need further analysis or clarification on any specific aspect.
The appellant/complainant initiated prosecution against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. This is ended in acquittal. Therefore, this appeal.
2. The case put forth by the complainant was that a cheque for an amount of rs.11.775/- issued by the accused in favour of the complainant in consideration of the amount taken as loan by him bounced. Statutory notice did not result in payment. Therefore, the accused committed ofence punishable under Section 138 of the N.I. Act. The case of the accused was that there was some transaction between him and one Maman, the brother of the husband of the complainant and towards the amounts due to him the cheque was issued. It was a blank cheque. That cheque was being made use of by the complainant. It was not supported by consideration. More over, there was material alteration in the cheque. The amount written in words and the name of the payee had been written admittedly by the complainant herself. A perusal of the cheque will further reveal that there were certain corrections where the amount in words had been written. That also will amount to material alteration of the cheque. So, no offence had been made out against the accused, submits the counsel for the accused.
3. Appreciating the evidence on record the trial court came to the conclusion that the case put forth by the accused was more probable. It is contended by the counsel for the appellant that the finding of the court below is erroneous. The signature is admitted by the accused and no independent evidence had been adduced by him. According to him, he had issued the cheque to Maman, the brother of complainant’s husband. Thus, the presumption is available against him under Section 118 read with Section 139 of the N.I. Act. That presumption could not be rebutted by the accused. Further, the accused did not send a reply to the statutory notice, thereby, tacitly admitting the allegations made out in the demand notice. So the acquittal is not justified, submits the counsel for the appellant/complainant.
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 preceding 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 bounced for want of sufficient funds, the cash would not have been given to such cheque even if sufficient fund was available, because of material alteration in the cheque. There was insertion in the place of writing the amount in words as (700) in between (11000) and (75). It had not been attested by full signature of the drawer. Therefore, it is not known which is the real denomination of the cheque. So, no case under Section 138 of the N.I. Act was made out.
5. The court below acquitted the accused on the ground of material alteration of the cheque. Whether it is a justified conclusion, is the point to be considered in this appeal. It is an admitted case of the complainant that she had written payee’s name and amount in the cheque. A mere filling of figures in the cheque will not amount material alteration when the cheque is in the hands of the payee.
6. Section 18 of the N.I. Act provides that the banker will honour a cheque based on the amount written in words. So, that is the material part of the cheque. The amount written in figurers in Ext.P1 cheque was ‘11775’. It is discernible that the figurers ‘11’ has not been made simultaneously or continuously as figures 775 to make a figure 11775. Even if, it is ignored the amount mentioned in words
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