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2007 Supreme(All) 1745
IN THE HIGH COURT OF ALLAHABAD
M. K. MITTAL, J.
FRAGRANT LEASING AND FINANCE COMPANY LTD - Appellant
Versus
JAGDISH KATURIYA - Respondents
Crl. App. 5944 Of 2004
Decided On : 06/04/2007
M.M.SAHAI, N.M.Sahai, Sameer Jain
The burden of proof lies on the accused to establish the nature of the cheques, and material alteration renders the cheques void.
Headnote:
N. I. Act - Criminal Complaint - Section 138 - Summary of Acts and Sections: Section 138, Section 139, Section 142(a), Section 87 - The court discussed the presumption under Section 139, burden of proof on the accused, and the requirements for filing a complaint under Section 142(a). The court also analyzed the implications of material alteration under Section 87, and the relevance of the accused's statement under Section 313, Cr. P. C.
Fact of the Case:
The appellants filed a criminal complaint under section 138 of the N. I. Act alleging that the accused issued two cheques knowing there were insufficient funds, but the learned Magistrate acquitted the accused due to lack of evidence and defects in the complaint.
Finding of the Court:
The court found that the complainant failed to prove the notice given to the accused and the authority of the complainant No. 2 to file the complaint. The court also held that there was a material alteration in the cheques, making them void under Section 87 of the Act.
Issues: The issues revolved around the admissibility of evidence, authority to file the complaint, and the validity of the cheques due to material alteration.
Ratio Decidendi: The burden of proof lies on the accused to establish that the cheques were given as security, and the complainant must prove the authority to file the complaint. Material alteration renders the cheques void, and the accused's statement under Section 313, Cr. P. C. is not a sole basis for conviction.
Final Decision: The court upheld the acquittal of the accused, finding no grounds to interfere in the order of acquittal.
( 2 ) HEARD Sri N. M. Sahai, learned counsel for the appellants, Sri Sameer Jain, learned counsel for the opposite party No. I, learned A. G. A. and perused the record.
( 3 ) BRIEF facts of the case are that the appellants filed a criminal complaint under section 138 of the Act alleging that complainant no. 2 was the employee of the complainant no. 1 Fragrant Leasing and Finance company Limited and had been authorised to present the complaint. The complainant no. 1 used to provide financial assistance after completing the requisite formalities required for adjustment of loan. Accused took a loan of Rs. 11 lacs from complainant no. 1 and in order to repay the loan issued two cheques Number 8630 dated 31-12-2001 and 8629 dated 1-4-2002 for Rs. 6 lacs and 5 lacs (total 11 lacs) respectively with the clear understanding and stipulation that the cheques would be honoured and encashed on presentation. Complainant presented these two cheques at Central Bank of India, Lahurabeer Branch, Varanasi but the same were returned to the complainant on 1-7-2002 with the endorsement on covering memo exceeded arrangement meaning thereby that the accused had issued the cheques knowing well that there was no sufficient fund in his account. It shows the dishonest intention of the accused to deceive the complainant. The complainant through legal registered notice dated 16-7-2002 called upon the accused to make payment of the amount of Rs. 11 lacs with interest @ 24% per annum and the cost of the notice rs. 600/- within 15 days from the receipt of the notice but the accused did not make any payment. Thereafter the complaint was filed on 6-8-2002 as is clear from the order sheet.
( 4 ) THE complainant examined Satish kumar Saluja one of the directors of the limited company on 26-8-2002. The accused was summoned and he was examined by the learned Magistrate on 6-2-2003 and there he replied in affirmative to the question that in order to repay the loan taken by him, he had issued two cheques No. 8630 and 8629 as mentioned above. He also replied that the notice was received by him and he had also given a reply thereof. However he also stated that he had issued post dated cheques as security for the loan and also admitted that he had not paid back the loan and would pay the same in instalments.
( 5 ) IN support of its case, prosecution led evidence and examined P. W. 1 Satish Kumar saluja and P. W. 2 Raj Kumar, the complainant no. 2. They stated the prosecution case on oath. The complainant also filed two cheques, a memo of bank statement of account, the Memorandum and Articles of the association, the reply notice given by the accused and also a photocopy of the notice given by the complainant to the accused on 16-7-2002. The reply notice shows that the accused admitted having received the notice of the complainant dated 16-7-2002 on 19-7-2002. In reply notice, it has also been mentioned! that he had issued two post dated cheques for the security of the loan amount and that he was ready to pay the amount in instalments. The accused was examined under Section 313, Cr. P. C. on 11-3-2004 and he denied having given any cheque:. However, he did not adduce any evidence in defence.
( 6 ) LEARNED Magistrate on the basis of the evidence concluded that the complainant had not filed the carbon copy of the notice given to the accused and the notice had not been proved, the photocopy could not be taken into evidence and that the statement of the accused as given could not be read against him and that the cheques were given as security and not towards payment of the loan or debt. There was cutting in the dates of the two cheques and no explanation had been given in
