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Rajasthan High Court · body

2005 DIGILAW 157 (RAJ)

Lohiya Mines-Cum-Pvt. Ltd. v. Naveen Handa

2005-01-18

H.R.PANWAR

body2005
Judgment petitioner-complainant seeks setting aside of the to appeal und d-respondent was held guilty forH.R. Panwar , J.-By this criminal leaveJudgment and ord r dated 10.06.2004 passed by in Chief Judicial Magistrate (Economic Offences), Jodhpur (for short, "the trial Court" hereinafter) Criminal Case No. 717/2004, by which the trial Court acquitted accused-respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act, 1881" hereinafter). 3. Heard learned Counsel for the petitioner and perused the Judgment and order impugnedIn all four cheques were allegedly issued by d-respondent in favour of thepetitioner-complainant. On dishonour of first two cheques, Section 378(4), CrPC, the offence punishable under Section 138 of the Act, 1881. The remaining two cheques No. 018792 and 018793, when presented to the bank, were dishonoured on account of their being out-dated and returned to the complainant-petitioner. Thereafter, these cheques were again presented before the bank by changing the dates of the cheque to bring cheques within the limitation bu the same were dishonoured on account of exceed arrangement. For the dishonour of the remaining wo cheques, the trial Court acquitted the accused-respondent of offence under Section 138 of the Act, 1881 on the ground that there were material change in the dates of the two cheques in question without any consent of the accused-respondent and the out-dated cheques have been presented before the bank by changing the respective dates of 10.01.2000 and 10.02.2000, the dates of 10.01.2001 and 10.02.2001 have been put on the cheques in dispute and as such, in view of the provision of Section 87 of the Act, 1881, the said cheques became void. 4. There is no dispute that the in dispute, bearing Nos. 018792 and 018793 for Rs. 10,000/-each, were issued bearing the dates 10.01.2000 and 10.02.2000. These cheques, when presented to the bank, were dishonoured on account of exceed arrangement. Thereafter, the dates on these cheques were changed by putting the dates 10.01.2001 and 10.02.2001 and as such, material alterations in the year have been made to bring the out-dated cheques within valid period. There is no signature of the drawer on the corrections in the dates, which over-rules implied consent of drawer in changing the dates on the . For want of signatures on correction in the dates, cheques have been bounced. 5. There is no signature of the drawer on the corrections in the dates, which over-rules implied consent of drawer in changing the dates on the . For want of signatures on correction in the dates, cheques have been bounced. 5. For constituting an offence under Section 138 of the Act, 1881, the dishonour of the cheque should be for insufficiency of the fund. In the instant case, the cheques have been dishonour for material alteration, w thout signatures of the drawer, in the origin l dates written in the cheques. Section 87 deals with effect of material alteration in the cheque nd provides that any material a era on of a neg t able instrument renders the same void as against any one who is a party thereto at the time f making such alteration and does not c nse t thereto, unless it was made in order to carry out the common intention of the original parties; d further provides that any suchera on, if made by an indorsee, discharges the indoreser fr m ll liability to him in respect of t econsideration thereof . Admittedly, the c ques in dispute were lyi g with the petitioner-complainant nd absence of signatures of the respond t-indorser on changed the dates in the cheques leads to aconclusion that the dates have been c a offence under Section 138 of the Act, 1881.ged without his onse t. In this view of the matter, the trial Court is justified in dismissing t e complaint and a quitting the accused-respondent of t 6. The learned trial Court, while passing the impugned order, passed a well-reasoned and speaking Judgment , which, in my considered opinion, does not require any interference. 7. Consequently, leave to appeal is rejected and the appeal is dismissed.