A drawer of a negotiable instrument can voluntarily re-validate a cheque by altering the date, even if the original validity period has expired; such alteration does not invalidate the cheque or the subsequent prosecution under Section 138 of the NI Act.

JUDGMENT

This appeal has been filed challenging the judgment dated 05-02-2018 in Crl. Appeal No.79/2017 on the file of the Additional Sessions Judge-IV, Kollam, through which that court (hereinafter referred to as the 'First Appellate Court’) set aside the conviction and sentence imposed on the 1^st respondent by the Judicial First Class Magistrate-III, Kollam, in S.T No.8031/2015.

2. S.T. No.8031/2015 was a complaint filed by the appellant herein alleging that the 1^st respondent herein had committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act'). It was the case of the appellant that the 1^st respondent had issued a cheque dated 16-04-2015 for a sum of Rs.3,00,000/- to the appellant, and the same was presented for encashment. The cheque was returned unpaid and dishonoured on account of want of funds in the bank account of the 1^st respondent. After complying with statutory formalities, the complaint was instituted and was taken on file as S.T. No.8031/2015. The trial court found that the case of the 1^st respondent that there was no financial transaction between the appellant and the 1^st respondent cannot be accepted as Ext.P6 document, which is the statement of account of the complainant, clearly shows that the appellant had issued cheque No.783817 drawn on her account to the 1^st respondent and that was encashed by the 1^st respondent. On this finding and relying on the presumptions under Sections 118 and 139 of the NI Act, the learned trial judge found that the appellant had succeeded in proving that the cheque had been issued by the 1^st respondent for the discharge of a legally enforceable debt. The trial court therefore convicted the 1^st respondent for the offence under Section 138 of the NI Act. The 1^st respondent was sentenced to undergo simple imprisonment for 3 months and to pay a fine of Rs.3,00,000/-, and in default of payment of the fine amount, the 1^st respondent was directed to undergo simple imprisonment for a further period of one month. It was directed that the fine amount, if realised, shall be paid to the appellant as compensation under Section 357 Cr. P.C.

3. An appeal was filed by the 1^st respondent, which came to be numbered as Crl. Appeal No.79/2017. The appeal was considered by the Additional Sessions Judge-IV Kollam, and by the judgment dated 05-02- 2018, the Sessions Court reversed the finding of the trial court and acquitted the 1^st respondent on the ground that there was a material alteration in the date on the cheque in question. The First Appellate Court also found that the said alteration was made beyond the date of validity of the cheque as counted from the original date shown on the cheque, and in the absence of evidence to show that the alteration was done with the consent of the 1^st respondent, the burden was on the appellant to show that the alteration was carried out by the 1^st respondent or with his consent.

4. The learned counsel for the appellant would submit that the finding of the First Appellate Court is clearly unsustainable in law. It is submitted that the original date on the cheque issued to the 1^st respondent was 15-10-2014. It is submitted that the validity of the said cheque was till 14- 04-2015, as at that point in time, a cheque had a validity of six months. It is submitted that the 1^st respondent was a doctor by profession, and the appellant used to consult him. It is submitted that the 1st respondent had borrowed amounts from the appellant and had issued a cheque for the discharge of the liability to the appellant. When the appell