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2011 DIGILAW 934 (KAR)

M. B. Rajasekhar v. Savithramma

2011-09-22

A.S.PACHHAPURE

body2011
Judgment :- The appellant has challenged the order acquitting the respondent for the charge under Section 138 of the Negotiable Instruments Act (hereinafter called as ‘the Act’ for short) on a trial held by the Addl. Chief Metropolitan Magistrate, Bangalore. 2. The facts relevant for the purpose of this appeal are as under: The appellant herein submitted a complaint before the Trial Court under Section 200 Cr.P.C. against the respondent the accused before the Trial Court and it is alleged that they were known to each other and for domestic requirements, the respondent (the accused) made a request to the appellant (the complainant) in the month of September 2004 to give a hand loan of Rs.6,00,000/-. The respondent as security for the said loan issued a post dated cheque for a sum of Rs.6,00,000/- dated 13-04-2004 drawn on Sri. Anjaneya Co-operative Bank Limited and thereafter, assured the complainant to clear the dues within the stipulated period, failing which, the cheque will be honoured on presentation on the due date. The respondent did not keep up the promise and with the consent of the respondent, the appellant submitted the cheque for encashment and it returned with an endorsement of insufficient funds. The appellant issued a notice dated 21-10-2004 and instead of complying with the demand made in the notice, the accused is said to have given a false reply. In these circumstances, the appellant approached the Trial Court with a complaint on these facts. During the trial, the appellant was examined as PW.1 and his wife as PW.2 and got marked the documents Exs.P.1 to P.11. The statement of the accused was recorded under Section 313 Cr.P.C. The accused examined herself as DW.1 and two witnesses DWs.2 and 3 and in the evidence, got marked the documents Exs.D.1 to D.14. The Trial Court, after hearing the counsel for the parties and on appreciation of the material on record, acquitted the accused for the charge aforesaid and aggrieved by the acquittal, the present appeal has been filed. 3. I have heard the learned counsel for both the parties. The point that arise for my consideration is: “Whether the appellant has made out any grounds to warrant interference in the order of acquittal of the respondent for the charge under Section 138 of the Act?” 4. 3. I have heard the learned counsel for both the parties. The point that arise for my consideration is: “Whether the appellant has made out any grounds to warrant interference in the order of acquittal of the respondent for the charge under Section 138 of the Act?” 4. The learned counsel for the appellant would contend that when once the signature on the cheque is admitted by the respondent, a presumption arises under Section 139 of the Act and there is a heavy burden upon the respondent/accused to rebut the said presumption and further, that the respondent has not led any such evidence to rebut the presumption. It is also his contention that there is no material alteration of the cheque Ex.P.1 and in the circumstance, the Trial Court committed an error in granting an order of acquittal. So also, it is his contention that the Trial Court has not taken into consideration the other aspects except with reference to the alteration of the cheque and therefore, he contends that this is a case wherein the matter has to be remitted to the Trial Court with a direction to consider all the points and then to pass appropriate orders. Per contra, the learned counsel for the respondent has supported the judgment and order of the Court below. 5. The cheque said to have been issued by the respondent has been admitted in evidence as Ex.P.2. It bears the date as 13-04-2004. The number 4 appears to have been altered. It could be seen through the naked eyes that there is an alteration of the year of the cheque. It is the submission of the counsel, that there is no alteration at all. PW.1 the appellant in the cross examination states that he does not know as to whether there is any alteration in the cheque. Further, he states that at the place where the date of the cheque is corrected, there is no signature of the accused. This version in the cross examination of PW.1 clearly indicates his knowledge about the alteration of the year in the cheque. 6. The learned counsel relies upon the decision of the High Court of Madras reported in AIR 1977 Madras 274 (Seth Dhanoomal Parsaram V. P. Kuppuraj) wherein the High Court has referred to the principle of material alteration and has held as under: “The principle underlying material alteration is settled. 6. The learned counsel relies upon the decision of the High Court of Madras reported in AIR 1977 Madras 274 (Seth Dhanoomal Parsaram V. P. Kuppuraj) wherein the High Court has referred to the principle of material alteration and has held as under: “The principle underlying material alteration is settled. It pre-supposes that there was a writing to which the executant of the negotiable 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. Further the alteration if discovered should shake the very foundation of the instrument.” 7. In view of the decision referred to supra, the question that now arises for consideration is as to whether the alteration is material alteration or a formal? 8. It is relevant to note that the cheque is valid for six months from the date of its issue. In case, if it is not presented within the time and later, if presented, it would be rejected by the bank, unless it is revalidated by the drawer. If this aspect of the matter is considered, the change of the date of the cheque amounts to a material alteration and it cannot be said that it is formal. When the alteration could be seen from naked eyes, I do not think that there is any necessity of any expert opinion. In the circumstances, I am of the opinion that as the alteration is material, the negotiable instrument Ex.P.2 is invalid and cannot be relied upon. 9. When the alteration could be seen from naked eyes, I do not think that there is any necessity of any expert opinion. In the circumstances, I am of the opinion that as the alteration is material, the negotiable instrument Ex.P.2 is invalid and cannot be relied upon. 9. The learned counsel relied upon the decision of the Apex Court reported in AIR 2002 SC 38 (Veera Exports V. T. Kalavathy) wherein the Apex Court holds that a cheque which has become invalid because of the expiry of the stipulated period, could be made valid by alteration of dates. But, it is not the case of the appellant that the respondent/accused has altered the date and if it was so, there could have been the signature of the respondent at the place of alteration. The appellant has not taken any contention that the cheque was revalidated by the respondent, after the stipulated period. Therefore, the principle laid down in the decision referred to supra do not apply to the facts on hand. 10. A peculiar allegation is noticed from the complaint. The appellant makes a claim that the respondent/accused approached him for financial help for his domestic requirement during the month of September 2004 and that he handed over a cash of Rs.6,00,000/-and took the post dated cheque dated 13-04-2004 for Rs.6,00,000/-. It is relevant to note that the date 13-04-2004 is earlier to the month of September 2004. Therefore, this cheque cannot be called as a post dated cheque and the allegations in the complaint are contrary to the statement that it is a post dated cheque. Furthermore, in the complaint itself, in para 3 it is stated. “Thereafter, the accused for the security of the said amount issued a post dated cheque bearing No.002607 for a sum of Rs.6,00,000/-dated 13-04-2004 drawn on Sri. Anjaneya Co-operative Bank Limited”. So, when the allegation itself is that the cheque was given as a security, then it is to be held that the said cheque which was given by the accused was not towards the repayment of the debt or liability and on this court, it is the appellant/complainant, who has to fail. 11. It is the defense of the respondent/accused that the complainant is a stranger to her and there was no money transaction between the complainant and herself. 11. It is the defense of the respondent/accused that the complainant is a stranger to her and there was no money transaction between the complainant and herself. She knows the wife of the complainant through one Smt. Krishnaveni and the wife of the complainant offered her to give six months maid servant’s job in America in the house of her daughter on a monthly salary of Rs.30,000/- and stated that there is necessity to obtain the passport and that in the guise of getting the discharge of proof of financial stability, the wife of the complainant took a cheque for Rs.1 lakh and another blank cheque and later, when she insisted that the accused has to stay for five years in America, she refused the offer and in these circumstances, the appellant taking disadvantage, has filed a false complaint. 12. Now, as could be seen from the cheque Ex.P.2, the contents of the cheque are in different handwriting and the perusal of the signature of the accused on this cheque does not reveal that she has filed in the cheque in her own hand. Thereby, an inference could be drawn that either the cheque was blank or that some other person has filed in the contents of the cheque. But as could be seen from the allegations in the complaint, as the security, the accused is said to have given a post dated cheque for Rs.6,00,000/-. When once there is an allegation that it is a post dated cheque, though it is not so, it presupposes that the contents of the cheque were written on the date when the cheque was given to the appellant. The evidence discloses that the accused worked as a maid servant in the house of the complaint as admitted by the complainant himself on a monthly salary of Rs.1,500/-. So, when the respondent/accused was a poor giving an amount of Rs.6,00,000/- to such a person for the domestic needs appears to be improbable and unacceptable. After the receipt of the notice at Ex.P.5, the respondent/accused has given her reply as per Ex.P.10. Her evidence and the documents produced would reveal that an effort was made to obtain the passport for the accused and looking to these documents, the defense putforth appears to be more probable. 13. After the receipt of the notice at Ex.P.5, the respondent/accused has given her reply as per Ex.P.10. Her evidence and the documents produced would reveal that an effort was made to obtain the passport for the accused and looking to these documents, the defense putforth appears to be more probable. 13. The learned counsel for the appellant has placed reliance on the decision of the Apex Court reported in AIR 1999 SC 1008 (Bharat Barrel and Drum Manufacturing Company V. Amin Chand Payrelal), wherein the Apex Court took into consideration the burden of proof and presumption as to consideration and held that the promissory note alleged to have been executed as a collateral security and not for value received as mentioned therein, and when there was a failure on the part of the defendant to prove non-existence of consideration, the onus cannot be shifted on the plaintiff and the claim made by the plaintiff has to be allowed, even if the evidence adduced by the plaintiff is found to be unbelievable in rebuttal of defendant’s case. He also relied upon the decision of the High Court of Andhra Pradesh reported in 1994 Crl.L.J. 411 (Adapa Bhogi Raju V. S.G. Ramayya and another) wherein it is observed as under: “5. ………. It may be noted that having admitted the issuance of cheques in favour of the complainant, the burden is very heavy on the accused to prove that the cheques were not issued in connection with the transactions as alleged by the complainant. An independent assessment of the evidence adduced by the complainant, both oral and documentary, leads me to an irresistible conclusion that the cheques were issued by the accused in connection with the film distribution business has alleged by the complainant but not in connection with some other transactions as contended by the accused. Even otherwise, he should not have issued cheques without sufficient funds in the bank to his credit. It is only the capacity of the complainant that is questioned by the accused. …..” 14. He further relied upon the decision of this Court reported in 2006 (4) KCCR 2685 (S. Parameshwarappa and another vs. S. Choodappa) wherein this Court held that once the cheque is issued, the accused cannot contend that it is not issued in respect of legally enforceable debt. …..” 14. He further relied upon the decision of this Court reported in 2006 (4) KCCR 2685 (S. Parameshwarappa and another vs. S. Choodappa) wherein this Court held that once the cheque is issued, the accused cannot contend that it is not issued in respect of legally enforceable debt. Any how, in the catena of decisions, the Apex Court has held that once the execution of the cheque is admitted, a presumption arises under Section 139 of the Act in favour of the complainant, that the said cheque was issued towards the discharge of the debt or liability, but it observed that the presumption that arises is rebuttable and in case, if the accused raised a probable defense, it is sufficient to rebut the presumption raised under Section 139 of the Act. As already held, the defense put forth by the accused is probable and it is substantiated on the basis of the material referred to supra and also on further other grounds. 15. Though in the complaint, it is alleged that the advancement of the loan was for domestic requirement, in the evidence, PW.1 states that it was for the construction of the house by the accused. In the complaint, it is specifically alleged that the cash loan of Rs.6,00,000/- was given to the accused in the month of September 2004. In the chief examination, PW.2 states “on due verification of the spot, my husband paid Rs.6,00,000/- in several installments.” 16. Though, in the complaint and in the evidence of PW.1, it is stated that it is onetime payment, PW.2 states in a different way, having given the loan of Rs.6,00,000/- to the respondent under several installments. So, the evidence of PW.2 goes contrary to the allegations in the complaint and the evidence of PW.1. So, the perusal of the evidence of DWs.1 to 3, in the context of the defense taken in the notice Ex.P.10 and for the reasons stated above, I am of the opinion that the appellant/complainant has failed to establish the initial burden and even if it is assumed that there is some presumption under Section 139 of the Act, the same stands rebutted for the reasons stated supra. 17. 17. Though the Trial Court did not take into consideration these all circumstances and though the learned counsel for the appellant contended that the matter requires remand to consider these aspects, I do not think that his submission is acceptable in law. When the Trial Court decides the matter only on one point, though there were several points, that itself cannot be a ground to remit the matter of the Trial Court, as the Appellate Court can look into the material placed on record, peruse the same and give its findings. Though the Trial Court ought to have considered the other points, it has rightly rejected the request of the appellant on the ground of material alteration, in addition, the appellant has failed to discharge the initial burden of getting a post dated cheque as a security for the repayment of the loan and even if a presumption arises, the material placed on record by the respondent is sufficient to rebut the presumption raised under Section 139 of the Act. In the circumstances, I do not find any grounds to warrant interference in the order of acquittal. In that view of the matter, I answer the point in negative and proceed to pass the following: Order The appeal is dismissed. No costs.