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2019 (8) TMI 62 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - acquittal of the accused - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- On a perusal of Ext.P1 cheque, it is seen that the name “Kousthubhan” (the name of the accused) was initially written as the name of the payee. It is seen that the name of the payee written as “Kousthubhan” is struck off and the name of the complainant is written in the cheque as the payee - Therefore, it is evident that there was alteration made in the cheque with regard to the name of the payee. The question is whether it is a material alteration or not. Alteration of the payee's name in a cheque is material which affects the character of the instrument, and so also the relationship of the parties and their legal position as originally expressed. Therefore, it has to be concluded that material alteration of Ext.P1 cheque was effected with regard to the name of the payee. The party who consents to the alteration as well as the party who made the alteration are not entitled to complain against such alteration. If the drawer of the cheque himself altered the cheque, he cannot take advantage of it later by saying that the cheque became void as there is material alteration thereto. Even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also cannot be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed. Whether material alteration of the cheque was made by the accused himself or with his consent? - HELD THAT:- Ext.P1 is a cheque which was subjected to material alteration and that the complainant failed to prove that material alteration of the cheque was done or made by the accused himself or with his consent. The plea of the accused is also not probable. He did not even give any intimation to the bank regarding the loss of the cheque. According to him, the cheque was lost from the possession of his friend Babu. The accused did not examine his friend Babu. Therefore, the plea raised by the accused regarding the circumstances under which the cheque left his possession cannot be accepted as probable or convincing - in view of the material alteration of the cheque, non-acceptance of the plea of the accused, does not inure to the advantage of the complainant. The weakness of the plea of the accused does not come to the rescue of the complainant. Material alteration of the cheque, without the consent of the drawer, makes the instrument void and no criminal action would lie on the basis of such an instrument. There are no compelling grounds to reverse the order of acquittal passed by the trial court - appeal dismissed.
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