The accused successfully rebutted the statutory presumption of liability under the Negotiable Instruments Act, demonstrating that material alterations to the cheque invalidated the claim.

JUDGMENT :

This appeal by the complainant is against the acquittal of the accused for the offence under section 138 of the Negotiable Instruments Act .

2. As per the complaint, the accused borrowed Rs.75,000/- from the complainant during December 2003, and subsequently when the complainant demanded back the amount, the accused issued a cheque dated 10-05-2004 for Rs.75,000/- to the complainant. When the complainant presented the cheque for collection, the same was dishonoured as per memo dated 24-05-2004 on two grounds. (i) insufficient funds (ii) alteration in date require drawer confirmation.

3. Thereafter, the complainant issued statutory notice and in spite of notice, the accused failed to pay the cheque amount to the complainant.

4. Before the trial court, from the side of the complainant, PW1 was examined and Exhibits P1 to P4 were marked and from the side of the accused, DWs 1 and 2 were examined and Exhibits D1 to D3 were marked.

5. The trial court found the accused guilty of the offence under section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for 3 months and to pay a compensation of Rs.75,000/- to the complainant and in default of payment of compensation to undergo simple imprisonment for 6 months.

6. Against the judgment of the trial court, the accused filed Criminal Appeal No. 246 of 2006 and as per the impugned judgment of the Additional Sessions Judge (Adhoc-I) Manjeri dated 21-05-2008, the judgment of the trial court was set aside and the accused was acquitted of the offence under section 138 of the Negotiable Instruments Act .

7. In the present appeal, when there was no representation for the appellant, this Court issued notice to the appellant and the same was returned with the report, addressee not known and thereafter, this Court appointed Adv. Sudeep Aravind Panicker as State Brief to represent the appellant.

8. Heard Sri.Sudeep Aravind Panicker representing the appellant as State Brief and Adv.U.K.Devidas, appearing for the first respondent/accused and Sri.Alex M.Thombra, the learned Senior Public Prosecutor for the second respondent.

9. The learned State Brief representing the appellant argued that the finding of the Sessions court that there is material alteration in Ext.P1 cheque and that the accused has succeeded in rebutting the statutory presumptions is not legally sustainable. In this connection, the learned State Brief cited the decision of the Hon'ble Supreme Court in Bir Singh v. Mukesh Kumar, [2019 (1) KLT 598 (SC)] to point out that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. The learned counsel representing the appellant also cited the decision of this Court in Bhaskaran Chandrasekharan v. Radhakrishnan [1998 KHC 162] and argued that once there is admission of issuance of a cheque and even if there is insertion of a date on an undated cheque, the same cannot be a material alteration and it is to be presumed that the drawee has impliedly consented to put the date on the cheque.

10. The learned counsel for the accused/first respondent argued that the complainant has no case that he received an undated cheque from the accused and therefore the above decisions cited by the learned counsel representing the appellant is not applicable to the facts and circumstances and there is no reason to