Material alterations to a cheque render it void under Section 87 of the NI Act, and accused must be afforded the opportunity to prove their defence.

JUDGMENT :

Rakesh Kainthla, J.

The petitioner has filed the present petition against the order dated 28.02.2022 passed by learned Additional Chief Judicial Magistrate, Theog in Criminal Case No. 326 of 2015 titled Chaman Lal versus Sita Ram, vide which, the application filed by the petitioner (accused before the learned Trial Court) under Section 45 of Indian Evidence Act for sending the cheque to Chemical Examiner/Forensic Expert was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present petition are that the respondent/complainant filed a complaint before the learned Trial Court against the petitioner/accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short ‘NI Act’). It was asserted that parties were known to each other. The complainant is the sole proprietor of Chaman Trading Company. The accused purchased the construction material from the complainant, and he issued a cheque of Rs.4,90,000/- to discharge his liability. The complainant presented the cheque, which was dishonoured. The accused failed to pay the amount despite the receipt of the notice; hence, the complaint was filed before the learned Trial Court against the accused for taking action as per the law.

3. Learned Trial Court put the notice of accusation to the accused. The statement of the complainant was recorded on 27.10.2017.

4. The accused/applicant filed an application (Annexure P3) asserting that the complainant had tampered with the cheque issued to him as a security. The accused had made the payment of Rs.1,90,000/- to the complainant. He demanded the cheque from the complainant, and the complainant replied that he had misplaced the cheque somewhere. The accused had filled the amount in the figure. He had also signed the cheque. The complainant filled the amount in words by himself. He tampered with the figure of Rs.1,90,000/- and changed it to Rs. 4,90,000/-. The examination of the cheque by the Forensic Expert is essential to determine the alteration of the cheque; hence, it was prayed that the present application be allowed and the cheque be sent to the Forensic Expert.

5. The application was opposed by filing a reply taking preliminary objections regarding lack of maintainability and the accused having not come to the Court with clean hands. The contents of the application were denied on merits. It was asserted that the accused had never paid any amount to the complainant. It was specifically denied that the complainant had altered the figure ‘1’ to ‘4’ to read it as Rs. 4,90,000/- instead of Rs.1,90,000/-. The application was filed without any basis; hence, it was prayed that the same be dismissed.

6. The learned Trial Court held that the amount in the words was mentioned as Rs. 4,90,000/-, and the amount in the words will prevail in case of any difference in the words and the figures as per Section 18 of the NI Act. The accused admitted that he had issued a signed cheque; hence, the complainant had the authority to fill the amount. The signatures were not disputed, and a presumption under Section 139 of the NI Act applied to the present case. Even if it is proved that ‘1’ was changed to ‘4’, it will not have any impact on the pendency of the dispute before the learned Trial Court. Therefore, the application filed by the accused/applicant was dismissed.

7. Being aggrieved from the order passed by the learned Trial Court, the accused has filed the present petition asserting that the learned Trial Court erred in dismissing the application in a cursory manner without appreciating the facts, law and evidence. The cheque clearly shows that ‘1’ was altered to ‘4’. This alteration is visible even to the naked eye. This constitutes a material alteration. The provision of Section 18 does not apply to the present case because there is no discrepancy in the words and the