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2025 Supreme(Online)(J&K) 1265
HIGH COURT OF JAMMU AND KASHMIR
Sanjay Dhar, J
ABDUL HAMID WANI – Appellant
Versus
ABDUL HAMID LONE – Respondent
CRM(M) 264 / 2022
For the Appellants/Petitioners: Mudasir Bin Hassan
For the Respondents: None
Dishonour of a cheque due to material alteration can constitute an offence under Section 138 NI Act if the alteration was made by the drawer to prevent honour; but the identity of the altering party is a question of fact for trial.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138, 142, 87 - Material alteration - Dishonour of cheque - Offence under Section 138 - Alteration of amount - Whether alteration by drawer or payee - Question of fact - Determination only at trial - Failure to respond to demand notice - Effect.
(B) Criminal Procedure Code, 1973 - Section 482 - Inherent powers - Quashing of complaint - Scope - Disputed questions of fact cannot be adjudicated at preliminary stage.
Facts of the case:
The petitioner issued a cheque for Rs.14,000 to the respondent, which was allegedly altered by the respondent to show Rs.14,00,000. The cheque was dishonoured with the remark “alterations require drawer’s authentication.” The respondent served a legal notice, and upon non-payment, filed a complaint under Section 138 of the Negotiable Instruments Act. The trial magistrate took cognizance and issued process. The petitioner challenged the complaint and the order, contending that the alteration was forged by the respondent and that he had sufficient balance in his account.
Findings of Court:
The court, relying on M/s Lakshmi Dyechem v. State of Gujarat (2012) 13 SCC 375, held that dishonour on account of alteration can constitute an offence under Section 138 if the drawer intended to prevent the cheque from being honoured. However, the determination of who made the alteration (drawer or payee) is a pure question of fact that cannot be resolved at the stage of quashing. The court noted that the petitioner failed to respond to the demand notice, which further necessitated a trial. The petition was dismissed, leaving the petitioner free to raise his contentions before the trial court.
Issues: 1. Whether dishonour of a cheque on account of alteration in the amount constitutes an offence under Section 138 of the Negotiable Instruments Act? 2. Who is responsible for the material alteration - a question of fact or law? 3. Can the complaint be quashed at the threshold on the ground of forgery?
Ratio Decidendi: The court ruled that dishonour of a cheque due to a material alteration (such as alteration of the amount) can attract Section 138 if the drawer made the alteration with the intent to prevent honour. However, the issue of who altered the cheque is a question of fact requiring evidence, and cannot be decided in proceedings under Section 482 CrPC. The failure of the drawer to respond to the demand notice strengthens the need for trial. Result : Petition dismissed.
JUDGMENT
1) The petitioner, through the medium of present petition, has challenged the complaint filed by the respondent against him for offence under Section 138 of the Negotiable Instruments Act, which is stated to be pending before the court of learned Additional Mobile Magistrate, Shopian (hereinafter referred to as “the trial Magistrate”). Challenge has also been thrown to order dated 10.06.2022, passed by the learned trial Magistrate, whereby cognizance of the offence has been taken and process has been issued against the petitioner.
2) It appears that the respondent has filed a complaint alleging commission of offence under Section 138 and 142 of Negotiable Instruments Act against the petitioner before the Court of learned trial Magistrate. In the complaint, it is alleged that the petitioner owes an amount of Rs.14.00 lacs to the respondent and in connection with liquidation of the said amount, he had issued cheque bearing No.29633156 dated 11.05.2022, for an amount of Rs.14.00 lacs payable at J&K Bank Branch Unit Harmain, Shopian. When the said cheque was presented for its encashment, the same was returned unpaid with the remarks “alterations require drawer’s authentication.”
3) It is further alleged that after receiving the aforesaid information from the Bank, the respondent served a legal notice of demand dated 23.05.2022 upon the petitioner calling upon him to make the payment within fifteen days. However, the petitioner failed to make the payment within the aforesaid period, which prompted the respondent to file the complaint before the learned trial Magistrate.
4) Vide the impugned order dated 10.06.2022, the learned trial Magistrate, after framing a prima facie opinion that the petitioner has committed offence under Section 138 of the Negotiable Instruments Act, issued a process against him.
5) The petitioner has challenged the impugned complaint and the impugned order on the grounds that the cheque in question is forged and that the act of forgery has been committed by the respondent. It has been submitted that the alterations in the amount mentioned in the cheque have been made by the respondent/complainant.
6) According to the petitioner, he had sufficient balance in his account on the date when the cheque was returned unpaid, but because the said cheque was forged by the respondent, the same was returned unpaid. It has been further submitted that the petitioner owed only a sum of Rs.14,000/ to the respondent, for which he had issued the cheque, but the respondent has converted the figures and words “14,000” into “14.00” lacs.
7) Notice of this petition son was sent to the respondent, but despite service, nobody has appeared on his behalf.
8) I have heard learned counsel for the petitioner and I have also perused record of the trial Magistrate.
9) The issue that falls for determination in this case is as to whether dishonour of a cheque on account of alteration made in the cheque amount would constitute an offence under Section 138 of the Negotiable Instruments Act.
10) The issue as to in what contingencies the offence under Section 138 of the Negotiable Instruments Act would be constituted upon dishonour of a cheque has been deliberated upon by the Supreme Court in the case of M/s Lakshmi Dyechem v. State of Gujarat & Ors., (2012) 13 SCC 375. It has been held as under:
“16. The above line of decisions leaves no room for holding that the two contingencies envisaged under Section 138 of the Act must be interpreted strictly or literally. We find ourselves in respectful agreement with the decision in Magma case [(1999) 4 SCC 253 : 1999 SCC (Cri) 524] that the expression “amount of money … is insufficient” appearing in Section 138 of the Act is a genus and dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer” are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Sectio
