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2021 (6) TMI 766 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - non- performance of his promise under the agreement to sell - HELD THAT:- In the instant case, the accused as DW-1 in his examination-in-chief has taken a contention that, the date column in the cheque at Exhibit P-1 was left blank by him and the same was filled by the complainant. Except this, he has not at all stated as to, whether he did not have his consent for the complainant filling up the date or whether he had precluded the complainant from filling the date in the instrument without his knowledge or consent. Therefore, even assuming that, it is the complainant who has filled the date, still, the drawer of the instrument, by giving such an un-dated cheque to the complainant, has impliedly permitted the complainant to fill the date in the Negotiable Instrument (cheque) by himself. In the instant case, the accused nowhere has stated that he had any objection for the complainant filling up the date in the cheque. It is on a similar point, the Division Bench of the Kerala High Court in Bhaskaran Chandrasekharan's case [1998 (4) TMI 569 - KERALA HIGH COURT] was pleased to observe that, when a cheque is issued for a valid consideration with no dispute regarding the signature, amount and name, it cannot be said that, putting a date on the cheque by the payee who is the holder of the cheque in-due-course would amount to material alteration rendering the instrument void. In the instant case, if the pre-printed year of the cheque were to be used without effecting any change in the year, it should have been used on or before the year 2009 but not thereafter. However, the cheque is said to have been given in the year 2013, as such, the year on the cheque is also shown as '2003' by overwriting the digit '1' against '0' at tens' place. Thus, the cheque is shown to have been issued in the year 2013 - No doubt it is an alteration, but had it been a material alteration, the banker while dishonouring the cheque would have, apart from showing the reason of insufficiency of funds in the account of the drawer, would also have mentioned the reason of "alteration require drawer's authentication". It is for the reason that the cheque return memo which is at Exhibit P-2 in its Code No.'1', though mentions the reason for return as "funds insufficient", the Code No.'12' of the very same exhibit for return mentions "alterations require drawer's authentication". Admittedly, the complainant is a real estate businessman and a hotelier. The accused in his deposition has shown his avocation as a coolie. He had agreed to sell his agricultural land to the complainant as per the agreement at Exhibit P-5 as could be made out from the said document. The said agreement does not quantify any damages, except stating that in case of any default the proposed purchaser had a right to take suitable legal action against the vendor and is entitled to recover the loss incurred by him - the quantum of fine imposed which is ₹ 1,05,000/- in addition to the cheque amount appears to be on a higher side. Criminal Revision Petition is allowed-in-part.
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