TMI Blog2022 (6) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... s made in order to carry out the common intention of the original parties. In the instant case, there is nothing on record to show that the alteration in the date of the cheque at Ex. P-1 was made in order to carry out the common intention of the original parties. Therefore, by virtue of the material alteration being made to the date of the cheque without any authentication thereto by the drawer of the cheque, the instrument becomes void. However, the banker, even there being a material alteration in the cheque, did not proceed to mention the same as one among the reasons for returning of the cheque, but only stated that the cheque was returned for the reason of closure of the account by the drawer. It is clear that since the account of the drawer of the cheque was closed with the drawee Bank as on the date of the presentation of the cheque at Ex. P-1, it confined the reason for returning of the cheque only to the reason of account closed . Thus, it cannot be deduced that, had there been any material alteration in the cheque at Ex. P-1, the banker should have necessarily mentioned about the same. At the cost of repetition, it is again observed that DW-1 as a Bank Manager of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, confirming the judgment of conviction and order on sentence passed by the Trial Court dated 18-12-2017 in C.C. No. 578/2014. Aggrieved by the said order, the accused has preferred this revision petition. 2. The summary of the case of the complainant in the Trial Court was that, the complainant and the accused are known to each other. The complainant is a Medical Practitioner and a Medical Examiner in the Life Insurance Corporation of India (LIC), Karkala Branch and the accused is an LIC Agent. At the request of the accused, the complainant had advanced a hand loan of a sum of Rs. 5,00,000/- to the accused in cash in the first week of January 2013 at his residence. The accused had issued a cheque dated 20-03-2013 bearing No. 749010 for Rs. 5,00,000/- drawn on the Corporation Bank, Karkala Branch, in favour of the complainant in discharge of the amount legally due to the complainant. When the said cheque was presented for realisation, the same came to be dishonoured and returned for the reasons 'funds insufficient' and 'Account Closed/Transferred to.. ....', as per the banker's memo dated 23-03-2013. Thereafter, the complainant got issued a legal notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court. 9. Learned counsel for the petitioner (accused) in his argument admitted that the accused is the drawer of the cheque at Ex. P-1 and that the said cheque has been dishonoured when presented for its realisation with the shara 'Account Closed'. However, his main point of argument was that the said cheque at Ex. P-1 is materially altered in its date, as such, the instrument has become void. This aspect, both the Trial Court and the Sessions Judge's Court have not noticed. He further submitted that the complainant has failed to prove that he had financial capacity to lend such a huge amount of money of Rs. 5,00,000/- as loan to the accused. He further submitted that the accused and complainant are not in good terms. Since the accused, as an LIC agent, refused to pay the demanded commission by the complainant in the LIC policies' premiums of the colleagues of the complainant, the complainant in whose clinic the accused used to leave his belongings including the documents like the cheques has taken out the cheque in question and misused by him. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tentions taken up by him in his complaint. Apart from Ex. P-1 and Ex. P-2, he has also produced one more banker's memo for return of the cheque issued by his banker at Ex. P-3, a copy of the lawyers notice at Ex. P-4, unclaimed RPAD cover along with original legal notice in it at Ex. P-5 and P-5 (a) respectively. With this, the complainant contended that after return of the cheque, he got issued a legal notice within time to the accused, demanding the payment of the cheque amount, however, the said notice was returned to the sender un-served. The complainant was cross-examined extensively from the accused's side, where attempts were made to show that the complainant had no financial capacity to lend such a huge sum of money and that the cheque was not issued by the accused to the complainant towards dischargal of any legally enforceable debt. It was specifically suggested to the witness that there was no loan availed by the accused from the complainant much less a sum of Rs. 5,00,000/-, as contended by the complainant. It was also suggested to the witness that there is alteration in the cheque at Ex. P-1. 14. From the accused's side, the then Manager of the Corporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has become invalid. 17. Learned counsel for the respondent submits that there is no such material alteration in the instrument and that the cheque is shown to have been issued by the drawer in the year 2013. 18. A perusal of the cheque at Ex. P-1 would go to show that, in the date column, the first two digits of the year is printed as '19', however, the said two digits i.e. '19' is shown to have been cancelled/scored off with a dash, i.e. '--' marked on those two digits/figures and after that, it is written as '20' followed by another figure which for a naked eye appears to be as '8', but, in close scrutiny looks like 'B', which, according to the complainant is '13'. The said two or one figure after the two digits/figures '20' is the subject matter of different interpretation by the learned counsels from both side. In the cross-examination of PW-1, without explaining as to what the alleged material alteration is, it was only suggested to the witness that, there is a material alteration in the cheque at Ex. P-1. However, the said suggestion was not admitted as true by the witness. The accused in his examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abilities of the parties thereto, irrespective of the fact whether or not the change is prejudicial to the payee. Apart from stating that a banker must be very careful when there is a material alteration in the cheque presented for payment and that it should see that such alteration has been made with the drawer's consent or authority and is confirmed by his signature, Tannan has also given few examples of material alterations in which the alteration of the date of the instrument with the purpose of accelerating or postponing the time of the payment comes on the top. 20. In the instant case, the alteration in the cheque at Ex. P-1 has been admitted by none else than the drawee Bank Manager in his evidence as DW-1. Though it was not elicited from him about the nature of the said alteration, however, he has identified the said alteration as an alteration in the date of the cheque. As analysed above, in the date column, the year appears to have been manipulated and appears to have been postponed the time of payment. Thus, undoubtedly, it is a material alteration in the cheque. 21. Section 87 of the N.I. Act which speaks about the effect of material alteration, states th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court nor the learned Sessions Judge's Court have noticed this aspect, on the contrary, merely because there was a cheque return memo and legal notice copy, they have proceeded to hold that the guilt against the accused has been proved beyond all reasonable doubts. Had they noticed the material alteration existing in the cheque at Ex. P-1, making the instrument at Ex. P-1 void, then, they would not have proceeded to hold the accused before it guilty of the alleged offence. Since the said finding of both the Trial Court as well the learned Sessions Judge's Court holding the accused guilty of the alleged offence is now established to be a perverse and erroneous finding, the same warrants interference at the hands of this Court. Thus, without discussing the other aspect of the alleged allegation of financial incapacity of the complainant to lend such a huge sum of money to the accused, suffice it to hold that the impugned judgments of both the Courts deserve to be set aside and the accused deserves to be acquitted of the alleged offence. Accordingly, I proceed to pass the following: ORDER [i] The Criminal Revision Petition stands ALLOWED. [ii] The impugned judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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