Material alterations in a cheque negate liability under Section 138 of the Negotiable Instrument Act.

JUDGMENT

Challenge in this appeal by the complainant is to the judgment of Judicial First Class Magistrate V, Thiruvananthapuram in C.C.No.497/2000 dated 25th November, 2002 dismissing the complaint and acquitting the second respondent/accused of the charge under Section 138 of the Negotiable Instrument Act .

2. The appellant/complainant filed a complaint before the trial court alleging that second respondent/accused borrowed Rs. 1,35,000/- from the appellant/complainant on January 5, 2000, that to discharge that debt, second respondent/accused issued a cheque -Ext.P1 on January 28, 2000 drawn on Thiruvananthapuram Statue Branch of Federal Bank, which when presented for collection was returned dishonoured for want of sufficiency of funds in the account of the appellant in the Bank, that in spite of the demand notice - Ext.P3 dated 31-03-2000, the accused did not repay the amount. Ext.P3(a) is the CrlA.No.302/03 2 postal receipt and Ext.P3(b) is the Postal acknowledgment. Thus according to the appellant, the second respondent has committed an offence punishable under Section 138 of the Negotiable Instrument Act .

3. On receipt of the complaint, the trial court recorded the sworn statement of the appellant/complainant PW1 and took cognizance of the case. The second respondent/accused on appearance before the lower court pleaded not guilty to a charge under Section 138 of the Negotiable Instrument Act . The appellant/complainant was examined as PW1 and he produced Exts.P1 to P3 series. When questioned under Section 313 of Cr.P.C., the second respondent/accused denied having committed the offence. As DW1 she testified that she gave a signed blank cheque to PW1 to discharge the debt of her husband and that there are material alterations in Ext.P1 cheque.

4. The lower court on an appreciation of evidence found that there are material alterations in the cheque- Ext.P1 and found the accused not guilty of the offence punishable under Section 138 of the CrlA.No.302/03 3 Negotiable Instrument Act and dismissed the complaint acquitting the accused. The appellant/complainant has challenged the said judgment of the lower court in this appeal.

5. When this appeal came up for hearing on 15/06/2009, the counsel for the appellant was absent, but the counsel for the respondents were present. Therefore the appeal was taken up for judgment.

6. The main ground urged in the memorandum of appeal is that the finding of the court below that there is material alteration in the cheque-Ext.P1 is against the evidence in this case and that as DW1did not send any reply to the notice Ext.P3, the lower should should have believed the evidence of PW1 and should have convicted the second respondent/accused under Section 138 of the Negotiable Instrument Act .

7. The following points arise for consideration:

1) Whether the cheque Ext.P1 was materially altered ?

2) Whether the finding of the lower court CrlA.No.302/03 4 that the second respondent/accused is not guilty of the offence punishable under Section 138 of the Negotiable Instrument Act and acquitting her can be sustained ?

8. The evidence of PW1 and Exts.P1 to P3 series prove the fact that the cheque when presented for collection was returned dishourned for want of sufficiency of funds in the account of the second respondent and that in spite of the notice issued, the second respondent did not repay the amount allegedly due from her. The case of the second respondent is that there is material alteration in the cheque Ext.P1 and that therefore the complaint is not maintainable. A perusal of the cheque Ext.P1 shows that there are material alterations therein. The last digit '0' and '1' of the amount shown therein appears to be subsequently added. The lower court has considered in detail the material alterations in the cheque-Ext.P1. The appellant/complainant has no explanation to offer. I am also convinced that there are material alterations in Ext.P1. That being so, the lower court is perfectly justified i