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TMI Blog2004 (11) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... d sentence. The learned Sessions Judge confirmed the conviction, but modified the sentence to that of a fine of Rs. 5,000/- and in default of payment of fine, to undergo simple imprisonment for three months. This Criminal Revision Petition is filed challenging the conviction and sentence imposed on the petitioner. The first respondent filed a complaint against the revision petitioner alleging that he borrowed an amount of Rs. 1,25,000/- from him and when a demand for re-payment of that amount was made, Exhibit P1 cheque was issued. It was also alleged that when the cheque was presented for collection, the same was dishonoured for want of sufficient funds in the account maintained by the revision petitioner with the Bank. A notice demanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negotiable instrument is found to be void, it cannot be held that any legally recoverable debt is due from the maker of that document and hence the conviction and sentence imposed on the petitioner are illegal. 4. The main contention raised is that figure "1" was subsequently inserted in Exhibit P1 cheque. The learned Magistrate himself had found that there was slight difference in the ink used for writing "1", but it was found that if "1" was subsequently written, the last figure "0" was also subsequently written. Since the accused had no case that "0" was also subsequently added; the contention that there was material alteration in the cheque was rejected. 5. The learned Sessions Judge also found that there was reason to believe that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s:- A material alteration, is one which varies the rights, liabilities, or legal position of the parties, as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. The principle laid down in that decision was followed by a Division Bench of this Court in Bhaskaran Chandrasekharan v. Radhakrishnan (1998 (1) KLT 881) it was held that alteration of the date in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instrument without the consent of the party bound under it is exactly the same as that cancelling the instrument. The instrument is rendered void only as against any one who is a party thereto and not against anyone becoming a party subsequent to the alteration. If a person indorses an altered instrument without the knowledge of the alteration he may be liable to the indorsee. A person who accepts an altered instrument cannot absolve his liability on the acceptance on account of the previous alteration. In Jawahar Trading Corporation v. Ramadas (1989 (2) KLT 932) this Court had considered the effect of material alteration of a negotiable instrument. It was held as follows:- Any material alteration of a negotiable instrument renders the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not necessary that it should adversely affect the party who raised that plea. It is true that the decision was rendered in a suit filed by he holder of the cheque against the drawer. That principle is applicable to criminal cases also. Under Section 138 of the Negotiable Instruments Act to make a person criminally liable the cheque must have been one issued in discharge of whole or in part of debt or liability. Further the cheque should have been dishonoured for insufficiency of fund or that is exceeds the amount arranged to be paid from the account. Still further, the debt must be a legally recoverable debt. Explanation to Section 138 makes it very clear. It reads as follows:- 138. Dishonour of cheque for insufficiency, etc., of fund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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