A cheque subjected to a material alteration, specifically an unauthorized date modification without the drawer's authenticated signature, is rendered void. Consequently, such an instrument cannot serve as the foundation for criminal prosecution.

JUDGMENT :

A. BADHARUDEEN, J.

1. The complainant in C.C.No.1017/2005 on the files of the Judicial First Class Magistrate Court-I, Thodupuzha has filed this criminal appeal, challenging the judgment of acquittal dated 27.11.2006 in the above case.

2. Heard the learned counsel appearing for the appellant/complainant and the learned Public Prosecutor appearing for the 2^nd respondent–State of Kerala. No representation for the 1^st respondent/accused, despite service of notice.

3. I shall refer the parties in this appeal as 'complainant' and 'accused' for easy reference.

4. Coming to the prosecution allegation, Ext.P1 cheque dated 20.09.2005 for Rs. 55,000 (Rupees fifty five thousand only), allegedly issued by the accused to the complainant in discharge of the said liability, when presented for encashment through Kodikulam Service Co-operative Bank got dishonoured for two reasons, viz., (1) alteration in date and (2) requires full signature as per Ext.P2 memo dated 06.10.2005. Despite issuance of legal notice, the accused failed to repay the amount and accordingly, the complainant preferred the complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act’ for short) by the accused.

5. The trial court took cognizance for the said offence and proceeded with trial. During trial, PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. No evidence let in by the accused.

6. The trial court, on appreciation of evidence, acquitted the accused, and it was founded by the learned Magistrate that even though there was insufficient funds in the account of the drawer to honour the cheque, the cheque was dishonoured for the reasons viz., ‘alteration in the date’ and ‘requires full signature’. Accordingly, it was found that Ext.P1 is a void cheque because of material alteration and consequently, criminal prosecution could not succeed.

7. The learned counsel for the appellant/complainant argued that even though the cheque was dishnoured for the reasons, viz., (1) alteration in the date and (2) requires full signature, as per Ext.P2 memo dated 06.10.2005, the correction in the date in Ext.P1 was made by the drawer/accused at the time of issuance of the cheque and it was so specifically stated in the complaint. That apart, the liability to the tune of Rs. 25,000 and issuance of Ext.P1 cheque during 2004 were admitted by the accused by raising plea of discharge, insofar as Rs. 25,000 admittedly received by him during 2004. Therefore, the case advanced by the complainant is liable to be believed based on the evidence given by PW1, so as to avail the benefit of presumption under Section 139 of the NI Act in favour of the complainant. He also submitted that there is no material alteration in the cheque to make the same as void as found by the learned magistrate.

8. In view of the argument advanced, the questions arise for consideration are:

1. What is the legal effect of correcting the date of cheque without an authentication by putting signature by the drawer of the cheque?

2. If any material alteration is found in a Negotiable Instrument, what is the legal consequence?

3. Whether the trial court is right in holding that the accused did not commit any offence under Section 138 of the NI Act since Ext.P1 is a void instrument?

4. Whether the trial court verdict would require interference?

5. Order to be passed?

9. Point Nos.1 to 5 On perusal of Ext.P2 dishonour memo, the reasons for dishonour of cheque are twofold, viz., (1) alteration in date and (2) requires full signature. On perusal of Ext.P1 cheque, it