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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. VENUGOPAL, J.
A.R. Chellappan - Appellant
Vs.
A.R.E. Thirugnanam - Respondent
Crl.A.No.383 of 2016
Decided On : 17-07-2017
Constitution of India,1950 - Article 136 – Criminal Procedure Code,1973 - Section 255(1) , 374(3)(a) , 397/401 and 378(4) - Negotiable Instruments Act, 1881 – Section 87 , 118 , 139 , 138 , 20 and 142 - Evidence Act - Section 114 and 17 - Loan - Repayment of loan - Issued Cheque - Cheque returned due to insufficient funds - Appellant/Complainant has filed instant Appeal, by taking a prime plea that execution of Ex.P1 - Cheque was not denied and therefore, burden is on side of Respondent/Accused to rebut presumption arising - Appellant that he had agreed to lend said sum and lent said amount to Respondent/Accused as loan and further that, Respondent/Accused after received amount and issued Cheque bearing No. dated to repay loan amount and said cheque was issued after filling up same in favour of Appellant/Complainant and added further gave an assurance to Appellant to deposit said cheque in Bank and to receive amount/money - Appellant/Complainant that he deposited aforesaid cheque on Indian Bank, Branch, but cheque got returned owing to insufficient funds in Respondent/Accused account - Appellant/Complainant had informed Respondent/Accused about lending of cheque again he deposited cheque at Indian Bank, Branch in his account for purpose of collection and cheque got returned due to insufficient funds – Held, Court safely comes to a conclusion that alteration in question was made/done without tacit consent or approval of Respondent/Accused, which culminates in avoiding the instrument - Suffice it for this Court to point out that Ex.P1 - Cheque suffers from Material Alteration and therefore, Ex.P1 - Cheque is held by this Court to be a void one - Cheque, third numeral 0 in year was altered as 1 which is a Material Alteration and certainly varies rights, liabilities or legal position of parties ascertained by Ex.P1 in its original state or otherwise changes legal effect of the instrument as originally expressed or reduces to certainty some provision which was originally un-ascertained and therefore, it is void - A Material Alteration includes within its fold a new interpolation/inception did not form part of original Ex.P1 document which came into existence between parties - As a sequel to aforestated detailed qualitative and quantitative discussions and this Court, on going through present facts and circumstances of case in conspectus fashion, comes to a resultant conclusion that view arrived at by trial Court that Respondent/Accused was not guilty in respect of offence under Section 138 of Negotiable Instruments Act is free from legal infirmities - Consequently, Appeal fails - Criminal Appeal is dismissed.
1. The Appellant/Complainant has focused the present Criminal Appeal before this Court as against the Judgment of Acquittal dated 04.02.2016 in S.T.C.No.133 of 2015 passed by the Learned Judicial Magistrate, (Fast Track Court), Tiruchengode.
2. The trial Court, while passing the Judgment in S.T.C.No.133 of 2015 dated 04.02.2016, after analysing the available material on record, came to the resultant conclusion that the Appellant/Complainant had not established that the case cheque was executed by the Respondent/Accused etc. and ultimately, found the Respondent/Accused not guilty in respect of an offence under Section 138 of the Negotiable Instruments Act, 1881 and acquitted him under Section 255(1) Cr.P.C.
Appellant's Submissions:
3. Questioning the Validity, Legality and Correctness of the Judgment of Acquittal dated 04.02.2016 in S.T.C.No.133 of 2015 passed by the Learned Judicial Magistrate, Fast Track Court, Tiruchengode, the Appellant/Complainant has filed the instant Appeal, by taking a prime plea that the execution of Ex.P1 - Cheque was not denied and therefore, the burden is on the side of the Respondent/Accused to rebut the presumption arising under Sections 118 and 139 of the Negotiable Instruments Act, 1881.
4. The Learned Counsel for the Appellant submits that 'Holder of a Cheque' is legally entitled to fill up an instrument to the value as per Section 20 of the Negotiable Instruments Act and therefore, the aspect of who filled up Ex.P1 - Cheque is of no significance to disbelieve the Complainant's case.
5. The Learned Counsel for the Appellant takes a stand that the evidence of D.W.2 in regard to the similarity in signature seen in Ex.P1 and Ex.D4 would no way dislodge the legal presumption and further, a reading of the evidence of D.W.2 would go to show that the trial Court has considered irrelevant materials to justify its conclusion.
6. It is represented on behalf of the Appellant that the trial Court had failed to appreciate that the testimony of P.W.1 was quite clear, cogent and unshaken one. As a matter of fact, the trial Court had committed an error in disbelieving the evidence of P.W.1 merely based on some suggestion put in cross examination.
7. The Learned Counsel for the Appellant emphatically projects an argument that the words 'shall presume' require the Court to take in account that the liability of the 'Drawer' of the cheque for the amount for which the cheques were drawn on accepting the consideration.
8. The Learned Counsel for the Appellant brings it to the notice of this Court that on behalf of the Respondent/Accused, no evidence was let in to rebut the presumption under Section 139 of the Negotiable Instruments Act except some ipsi dixit oral evidence. In this regard, the trial Court had not borne in mind the ingredients of Section 139 of the Negotiable Instruments Act.
9. The Learned Counsel for the Appellant contends that the words 'unless the contrary is proved' occurring in Section 118 and 139 of the Negotiable Instruments Act would make it clear that the presumption was to be rebutted by 'Proof' and not by a mere explanation, which was barely plausible unless the explanation was supported by proof, the mandatory presumption created by Law could not be said to be rebutted.
10. It is the version of the Appellant that in any event Ex.D1 to D8 (Respondent/Accused side documents) would not in any manner lend support to the plea of 'Acquittal'.
11. Lastly, it is the submission of the Learned Counsel for the Appellant that the trial Court had committed an error in discussing the case beyond the records and dissected the merits and demerits of the rival claims notwithstanding the fact that the case was confined to Ex.P1 - Cheque.
Respondent's Contentions:
12. In response, the Learned Counsel for the Respondent/Accused contends that the trial Court, at paragraph 8 of its Judgment, had clearly observed that the Appellant/Complainant's wife had written the word 'A. R. Chellappan' in the case cheque and d
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