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TMI Blog2021 (6) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the Trial Court. The Sessions Judge's Court in its order dated 01-09-2017 dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court dated 01-07-2016 in C.C.No.26605/2014. Aggrieved by the said judgment, the accused has preferred this revision petition. 2. The summary of the case of the complainant in the Trial Court was that, the accused had entered into an agreement with him to sell a landed property to an extent of 04 acres 01 gunta in Survey Nos.28 and 185 of Kudlu Village, Sarjapura Hobli, Anekal Taluk. In that regard, both of them had entered into an agreement dated 15-10-2010. As on the date of the agreement to sell, the sale consideration of a sum of Rs. 16.00 lakhs was paid to the accused as an advance amount. Subsequently, the accused failed to comply the terms of the agreement for sale. However, on repeated demands, the accused agreed to return the advance sale consideration amount received by him, in which direction, he issued a cheque bearing No.010343 dated 24-04-2013 for a sum of Rs. 16.00 lakhs, drawn on the Lakshmi Vilas Bank, Koramangala Industrial Layout, Bangalore, in favour of the complainant and assur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is: Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court? 10. It is not in dispute that, the complainant and accused were known to each other and that the accused was the drawer of the cheque at Exhibit P-1. It is also not in dispute that, the said cheque, when presented for realisation by the complainant through his banker, the same came to be unpaid and returned with the banker's endorsement "funds insufficient". To this extent, the evidence of the complainant as PW-1 has remained un-denied and un-disputed from the accused's side. In the cross-examination of PW-1, the accused himself has stated that, he had issued two cheques to the complainant, however, it was under the alleged agreement between them dated 05-04-2007. Neither the complainant nor the accused has produced the copy of the alleged agreement dated 05-04-2007. Except making such a suggestion, the accused also has not produced any document to show that, the alleged cheque was not given to the complainant by virt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act. 11. According to the complainant, after dishonour of the cheque, he got issued a legal notice to the complainant, demanding the payment of the cheque amount as per Exhibit P-3. A perusal of the said document would go to show that, the complainant referring to their agreement to sell dated 15-10-2010 has also stated that, the cheque for a sum of Rs. 16.00 lakhs issued by the accused to him towards the clearance of his liability towards the complainant has been dis-honoured. The complainant had demanded the said cheque amount together with interest thereupon @ Rs. 2% per month. 12. Learned counsel for the petitioner/accused in his argument also has taken a contention that, the said notice was not served upon the accused. The complainant has produced two postal receipts at Exhibits P-3(a) and P-3(b) and the postal acknowledgement card at Exhibit P-4 to show that the notice sent under Registered Post Acknowledgement Due (RPAD) has been duly served upon the accused. The postal acknowledgement card bears the postal seal and also bears the signature of the recipient of the postal article. DW-1 in his further cross-examination has admitted a suggestion as true that, the address show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "200..." to " 2 0 0 3'. He submitted that under Section 87 of the N.I. Act, it is a material alteration done by the complainant, as such, the accused is not liable to the complainant. 17. The accused has not taken a specific contention regarding the material alteration of the cheque, at the earliest point of time in the Trial Court, either as a defence in the cross- examination of PW-1 or in his evidence as DW-1, except taking a contention that, the date shown in the cheque was left blank by him and it was the complainant who filled the said date by himself. The said contention was not even suggested to PW-1 in his cross-examination, but the accused had taken that contention in his evidence as DW-1. However, the complainant had denied the same in the cross-examination of DW-1. 18. Learned counsel for the respondent/complainant in his argument vehemently submitted that, there is no evidence to show that the said filling up of the date in the cheque was by the complainant and that it has resulted into a material alteration. He further submitted that, neither filling up of the date in cheque nor filling up of the year of issuance of the cheque with prior printing of the first t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instrument was a party and that writing was given the go-by by a conscious covert or overt act on the part of the creditor resulting in a material alteration of the instrument. By establishing that a negotiable instrument has been altered in a superfluous sense will not suffice to prevent the creditor from instituting an action on such an altered instrument. The debtor complaining of material alteration should not rest content by establishing that there was a formal alteration which is innocuous and superfluous, but he should also further establish that there was a material alteration in the sense that what is sought to be put in Court was not the contract between the parties and was not what was intended between the parties at or about the time when it was executed. This is the underlying principle behind the concept of material alteration..." [iii] In the case of Bhaskaran Chandrasekharan Vs. Radhakrishnan reported in 1998 SCC OnLine Ker 464, wherein also, the question involved was as to whether the insertion of a date on an un-dated cheque would amount to 'material alteration' within the meaning of Section 87 of the N.I. Act, a Division Bench of the Kerala High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being enforced had his consent for such alteration or that the said alteration was made in order to carry out the common intention, then, such negotiable instrument would be still valid and binds the other party also." It was also held in the very same judgment that, if the alteration is made contemporaneously when the document came to be executed or if it is made at some subsequent period with the privity of the parties charged therein and in the absence of any fraud, the instrument would still be valid and enforceable. 19. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Admittedly, the said agreement is dated 15-10-2010. As such, if at all a cheque was required to be issued subsequent to the date of the agreement, it has to be only on or after the year 2010, for which purpose also, the cheque with the pre-printed three digits as "200_" should have been necessarily altered to show the correct year of issuance of the cheque. 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". Since the banker has not considered the cheque as materially altered, the pre-printed single digit of the year has been altered to put the cheque in use in the current year which was '2013' appears to have confined the reason for returning of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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. In such a circumstance, the quantum of fine imposed which is Rs. 1,05,000/- in addition to the cheque amount appears to be on a higher side. As such, in order to make the said sentence of fine proportionate to the gravity of the proven guilt against the accused, particularly in the light of the facts and circumstances of the present case, the said fine amount imposed requires to be reduced. It is for that limited purpose only, the present revision petition deserves to be allowed-in- part. Accordingly I proceed to pass the following: ORDER [i] The Criminal Revision Petition is allowed-in-part; [ii] The judgment of conviction passed by the learned XIX Additional Chief Metropolitan Magistrate at Bangalore City, in C.C.No.26605/2014 dated 01-07-2016, convicting the accused/present petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, which was furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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