9911796707
TMI Blog2023 (12) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... for family necessities. The complainant agreed to pay the said amount. On 27.07.2016 and 08.11.2016, the complainant has paid Rs.30,000/- twice in the name of the daughter of the accused through cheques. Again on 08.11.2016, the accused had requested to pay the amount of Rs.1,90,000/- by way of cash. Considering her request, the complainant has paid the said amount in the presence of Smt.Parvathi, Smt.Salma and Sri.Bommanathappa. The accused had promised the complainant that she would repay the amount as early as possible. However, even after lapse of almost one year, the amount was not refunded. Therefore, the complainant insisted the accused to repay the said amount. Then, the accused in the month of June 2017 issued a cheque and asked the complainant to present the same for encashment. When the said cheque was presented for encashment, it came to be dishonoured as "could not be proceeded due to alteration". The said endorsement has been received on 09.08.2017. The legal notice was issued on 05.09.2017 and the said notice came to be served on 08.09.2017. Inspite of notice having been served, the accused has not paid the amount nor replied to the said notice. Hence, it constrained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not an eyewitness to the transaction. 10. It is further submitted that the Trial Court after appreciating the oral and documentary evidence on record, recorded the acquittal which is proper and relevant and the said findings require no interference. Making such submission, the learned Amicus Curiae for the accused/respondent prays to dismiss the appeal. 11. After having heard the learned counsel for the respective parties and also perused the findings of the Trial Court in recording the acquittal, the points which would arise for my consideration are:- i. Whether the finding of the Trial Court in recording the acquittal of the accused for the offence punishable under Section 138 of N.I Act is justified? ii. Whether the appellant has made out grounds to interfere with the said findings? 12. The Appellate Court has to interfere only where it is noticed the perversity or error committed by the Trial Court in recording the acquittal in a case of appeal against acquittal. 13. It is also necessary to refer to the preposition of law for better understanding in respect of the Negotiable Instrument Act. Now, it is relevant to refer to the judgment of the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be dishonoured and received a shara as "could not be proceeded due to alteration in the cheque". On the other hand, the accused led her evidence and vehemently contended that she had borrowed only Rs.1,50,000/- and the cheque was issued for the said amount. However, the complainant has materially altered the cheque and presented it for encashment. The Trial Court recorded the acquittal on the ground that the complainant has failed to prove that the accused had consented to alter the cheque. 16. Now, it is relevant to refer to the provision under Section 87 of the N.I Act which reads as under : "87. Effect of material alteration.-Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration by indorsee.-And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of sections 20,49, 86 and 125." 17. On careful reading of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder. 20. On reading of the above said provision, it makes it clear that where one person signs and delivers to another a paper stamped in accordance with law relating to negotiable instruments either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. Once the authority is given to the complainant, it cannot be said that it is materially altered. The endorsement issued by the bank in this regard appears to be erroneous and not acceptable. 21. Even every negotiable instrument, On Demand Promissory Note or Bills of Exchange or cheque issued by the endorsee signed the blank, it gives authority to the holder of the bills of exchange or cheque to fill up the same not exceeding the amount covered by the stamp. In the present case, the complainant has stated that she has paid Rs.2,50,000/- to the accused and also further stated that to clear the loan, the accused has issued a cheque. On the other hand, the accused has admitted that she has is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
