Material alteration of a negotiable instrument without consent renders it void, negating any liability for prosecution under Section 138 of the NI Act.

JUDGMENT

This appeal is at the instance of the complainant in C.C.No. 198 of 2004 on the file of Judicial First Class Magistrate Court- II Punalur, challenging the judgment of acquittal under Section 138 of the Negotiable Instruments (for short, ‘the NI Act) Act, vide judgment dated 07.04.2006.

2. The case of the complainant was that, the accused borrowed Rs.1,50,000/- from her, and towards discharge of that debt, she issued Ext.P1 cheque dated 01.09.2002, drawn on Canara Bank, Kodaikanal Branch, assuring that it would be honoured on presentation before the bank. When the complainant presented that cheque before bank for collection, it was returned unclaimed for the reason ‘funds insufficient’. She sent registered lawyer notice to the accused intimating dishonour of the cheque, and demanding the cheque amount. That notice was returned unclaimed, and the amount was not repaid. Hence the complaint.

3. On taking cognizance, and on appearance of the accused before the trial court, particulars of offence were read over and explained, to which he pleaded not guilty, and claimed to be tried. The Power of attorney holder of the complainant was examined as PW1, and Exts.P1 to P7 were marked from the side of the complainant. On closure of complainant’s evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, and according to him, Ext.P1 cheque was given by him to the complainant in the year 2001, and altering the year as 2002, he presented it before bank. Ext.D1 was marked from defence side.

4. On analysing the facts and evidence, and on hearing the rival contentions from either side, the trial court found that, there was material alteration in Ext.P1 cheque to make that document void, and so the accused was acquitted, against which this appeal has been preferred by the complainant.

5. Heard learned counsel for the appellant/complainant, and learned counsel for the 1st respondent/accused.

6. Learned counsel for the appellant would contend that, the accused was admitting issuance of cheque, and he was not disputing his signature also. The presumptions under Sections 118 and 139 of the NI Act, were also available to the appellant/complainant to find that Ext.P1 cheque was issued towards discharge of a legally enforceable debt. Ignoring those aspects, the trial court acquitted the accused, and so, the impugned judgment is liable to be set aside.

7. Learned counsel for the 1st respondent/accused pointed out that, in Ext.P1 cheque, the year was originally mentioned as 2001, but subsequently the last digit ‘1’ was altered as ‘2’, to make the year 2002. That alteration was made without his knowledge or consent, and so, it amounts to material alteration which will nullify that document.

8. Section 87 of the NI Act reads thus:

87. Effect of material alteration.—

Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;

9. Learned counsel for the 1st respondent/accused would argue that, since Ext.P1 cheque was materially altered, by altering the year of the cheque, without the knowledge or consent of the accused, it will render that document void. PW1 - the power of attorney holder of the complainant was confronted with the alteration of the year found in Ext.P1 cheque. He was not denying the alleged alteration. But according to him, he was not able to read that document, without the aid of spectacles. At the same time, he would say that, he was not having any spectacles. PW1 has no case that, such an alteration was there, even when the accused handed over Ext.P1 cheque to the complainant. He has no case that, such alteration, if any, was made with the knowledge and consent of the accused.

10. Ext.D1 is the counterfoil of the chequebook issued in the name of 1st respondent /