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Madras High Court · body

2013 DIGILAW 726 (MAD)

C. Sonamuthu v. R. Barsha Beevi

2013-02-01

M.VENUGOPAL

body2013
Judgment :- 1. The Revision petitioner/complainant has preferred the instant Criminal Revision Petition as against the order dated 03.07.2012 in Crl.M.P.No.526 of 2012 in C.C.No.239 of 2012 passed by the learned Judicial Magistrate (Fast Track No.I), Nagercoil. 2. The Learned Judicial Magistrate, Nagercoil (FTC-I) while passing the impugned order dated 03.07.2012 in Cr.M.P.No.526 of 2012 in C.C.No.239 of 2012 has interalia observed that the writing of Rs.50,000/-in figure, in Ex.P.1 cheque, to find out whether the signature is similar in the cheque and other details namely, whether the numerical number 5 and other letters are different once, an opportunity is to be provided to the accused to find out the genuineness of the same, in the interest of justice and consequently ordered sending of Ex.P.1 cheque to be examined by a hand writing expert and for obtaining his report. 3. That a part, the trial Court has ordered that an examination report is to be filed by finding of as to whether the numerical letter of Rs.50,000/-in Ex.P.1 cheque has been written with signature in the same ink and also further to ascertain whether the numerical Number 5 seen in the details of Rs.50,000/-has been written and other details in the same ink and also to find out whether the numerical Number 5 has been added subsequently before the figure of Rs.50,000/- and resultantly allowed the miscellaneous petition. 4. Assailing the correctness of the order passed by the trial Court in Cr.M.P.No.526 of 2012 in C.C.No.239 of 2012, the revision petitioner/complainant has fixed the instant Criminal Revision Petition before this Court as an aggrieved person. 5. According to the Learned counsel for the Revision petitioner/complainant the impugned order dated 03.07.2012 passed by the trial Court in Cr.M.P.No.526 of 2012 in C.C.No.239 of 2012 in directing Ex.P.1 cheque signature being sent for examination of a hand writing expert etc., is an invalid and illegal one in the eye of law. 6. The Learned counsel for the Revision petitioner/complainant urges before this Court that the trial Court without application of mind has not considered the petitioner's plea that the respondent/accused has accepted his signature and denied the amount in the figures only and not the amount written in words. 6. The Learned counsel for the Revision petitioner/complainant urges before this Court that the trial Court without application of mind has not considered the petitioner's plea that the respondent/accused has accepted his signature and denied the amount in the figures only and not the amount written in words. Furthermore, it is the stand of the revision petitioner/complainant that in the present case there is no dispute as to the amount written in the words and therefore, there is no necessity to obtain an expert opinion. 7. Yet another argument of the learned counsel for the revision petition/complainant is that the trial Court has not taken into account of the fact that the respondent/accused has accepted his signature and therefore, passing of the consideration of the amount mentioned in the cheque is to be decided at the time of final hearing of the case. 8. The Learned counsel for the petitioner/complainant brings to the notice of this Court that the petition Crl.M.P.No.526 of 2012 has been pending before the learned Judicial Magistrate/FTC No.I, Nagercoil in C.C.No.239 of 2012 that the respondent/accused has contested his case without raising any objection and only when main case has been transferred to the Fast Track No.I/Judicial Magistrate Nagercoil in C.C.No.239 of 2012, a petition to obtain an expert opinion under Section 45 of Indian Evidence Act, 1872 has been filed by the respondent/accused and that too with an ulterior motive, after a lapse of more than 1 ½ years,clearly with a view to delay and procrastinate the trial proceedings. 9. Lastly, the Learned counsel for the Revision petitioner/complainant that on 10.09.2011, the respondent/accused has issued a notice to the petitioner/complainant and stated that he is ready to compromise with a revision petitioner herein and his efforts have entered in to vein and after his efforts proved futile then only, the respondent/accused has been proposed to file a petition under Section 45 of Indian Evidence Act 1872, for sending the Ex.P.1 cheque for obtaining a hand writing expert opinion. 10. 10. Per contra, it is submitted by the learned counsel for the respondent/accused that the trial Court has analysised the entire gamut of the matter in proper and real perspective and ultimately has passed orders on 03.07.2012 in Crl.M.P.No.526 of 2012 in C.C.No.239 of 2012, directing that Ex.P.1 Cheque, be sent for ascertaining and hand writing expert opinion in regard to the amount of Rs.50,000/- has been changed as Rs.5,50,000/- and other blanks are filed up by the complainant. 11. The crux of the controversy dispute centering between the parties is that the cheque bearing No.365151 contains two different figures and before the figure of Rs.50,000/-the figure of 5 is added and then the amount is written in words which have to be investigated and experimented. 12. The Learned counsel for the petitioner/complainant submits that the presumption prescribed by the Section 139 of the Negotiable Instrument Act really includes the existence of a legally inclusive of both are liable and to lend support to his contention relies on the decision of Hon'ble Supreme Court in (2010) 3 MLJ (Crl) 547 (SC), RANGAPPA V. SRI MOHAN, wherein it is held thus: "When the accused raises a probable defence which creates doubts about the existence of a "legally enforceable debt", the prosecution can fail. If no such defence is placed, the order of conviction is justified." 13. However, the Learned counsel for the Respondent/Accused submits that Ex.P.1 Cheque suffers from the defect of material alteration as per Section 87 of the Negotiable Instrument Act 1881, and indeed Ex.P.1 cheque is non-est in law because of material alteration. Furthermore, in view of the fact that Ex.P.1 Cheque suffers from material alteration without consent of the concerned party bound under in his exactly the same as that of cancelling the instruments as opined by this Court. If there is material alteration in cheque it amounts to cancellation as void and no criminal prosecution could be launched in law. 14. As a matter of fact, the onerous is on the plaintiff to establish that the material alteration has not been improperly made. By alteration, the identity of the instrument is very much destroyed. Unless the conditions specified under Section 139 of the Negotiable Instruments Act are specified no criminal liability can be mulcted on the accused. Also that no criminal prosecution is to begun if there is material alteration in cheque which renders it void. By alteration, the identity of the instrument is very much destroyed. Unless the conditions specified under Section 139 of the Negotiable Instruments Act are specified no criminal liability can be mulcted on the accused. Also that no criminal prosecution is to begun if there is material alteration in cheque which renders it void. 15. At this stage, this Court makes a useful reference to the decision relied on the side of the Respondent/Accused and quote the same to promote the substantial cause of justice. (a) In the decision NATHU LAL AND OTHERS V. MT.GOMTI KUAR AND OTHERS, AIR 1940 PRIVY COUNCIL 160, it is held as under: “The rule relating to the effect of material alterations in a deed made after its execution by or with the consent of any party thereto, as it prevails in English Courts, applies to Indian cases and can be briefly summarised as follows: @page-PC161 If an alteration (by erasure, interlineation or otherwise) is made in a material part of a deed after its execution, by or with the consent of any party thereto or person entitled thereunder, but without the consent of the party or parties liable thereunder, the deed is thereby made void. The avoidance however is not an initio or so as to nullify any conveyancing effect which the deed has already had; but only operates as from the time of such alteration and so as to prevent the person who has made or authorized the alteration and those claiming under him, from putting the deed in suit to enforce, against any party bound thereby who did not consent to the alteration, any obligation, covenant or promise thereby undertaken or made. A material alteration is one which varies the rights, liabilities, or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainly some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed”. (b) In order dated 11.08.2004 in Crl.A.No.174 of 1998(A) between SRI K.K.JOHN V. SRI.ALAN PAPALI Coram, the Kerala High Court in Paragraph Nos.4 to 6 has held and observed as follows: “4. (b) In order dated 11.08.2004 in Crl.A.No.174 of 1998(A) between SRI K.K.JOHN V. SRI.ALAN PAPALI Coram, the Kerala High Court in Paragraph Nos.4 to 6 has held and observed as follows: “4. The counsel for the accused submits that going by Section 18 of the N.I.Act the banker will take into account only the amount written in words for the purpose of paying cash. Necessarily, that portion was written in the blank cheque by the complainant which amounts to substantial material alteration. It is further submitted that even in the amount written in figures there is material difference in two ones proceedings the figure. 775. This also reveals that there was material alteration in the figure portion as well. Deposition of PW2, the bank Manager also substantiated his case. PW2 had stated that even though the cheque had been bounched for want of sufficient funds, the cash would not have been given to such cheque even if sufficient fund was available, because of material alteration in the cheque. There was insertion in the place of writing the amount in words as (700) in between (11000) and (75). It has not been attested by full signature of the drawer. Therefore, it is not known which is the real denomination of the cheque. So, no case under Section 138 of the N.I.Act was made out. 5. The Court below acquitted the accused on the ground of material alteration of the cheque. Whether it is a justified conclusion, is the point to be considered in this appeal. It is an admitted case of the complaint that she had written payee's name and amount in the cheque. A mere filling of figures in the cheque will not amount material alteration when the cheque is in the hands of the payee. 6. Section 18 of the N.I.Act provides that the banker will honour a cheque based on the amount written in words. So, that is the material part of the cheque. The amount written in figures in Ext.P.1 cheque was 11775'. It is discernible that the figures 11' has not been made simultaneously or continuously as figures 775 to make a figure 11775. Even if, it is ignored the amount mentioned in words was like (Eleven thousand and Seventy five only). If it is so taken there is substantial difference between Rs.11075/= and Rs.11755/=. It is discernible that the figures 11' has not been made simultaneously or continuously as figures 775 to make a figure 11775. Even if, it is ignored the amount mentioned in words was like (Eleven thousand and Seventy five only). If it is so taken there is substantial difference between Rs.11075/= and Rs.11755/=. But in order to make it in tune with the amount mentioned in figures namely, 11775/=, the words (seven hundred) is inserted between (eleven thousand) and (seventy five). Necessarily, this is an insertion or correction which requires as attestation by the drawer with his full signature. It is absent on the cheque. It is in these circumstances, PW2 has deposed that he would not have honoured the cheque even if, there was sufficient fund in the account of the accused. Therefore, the conclusion of the court below that there is material alteration in the cheque cannot be said to be unjustified. It is also a probable conclusion. In such circumstance, I find no reason to reverse the acquittal. This appeal fails, dismissed..SP1” (c) The decision 2003(2) ALD Cri 219, AVON ORGANICS LTD., V. POINEER PRODUCTS LTD AND ORS, in paragraph Nos.5 & 6, it is observed and laid down thus: “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.” 6. PW1 has produced tow letters exhibits P15 and P16 written by the accused. The cheque was sent along with exhibit P15. The appellant was also produced exhibits p4 and P6 which showed the consignment. I have perused the letters written by the accused. What is stated in the exhibit P15 letter is that he can present the cheque after one month. In exhibit P16 he requested for further time of 15 days. The cheque was sent along with exhibit P15. The appellant was also produced exhibits p4 and P6 which showed the consignment. I have perused the letters written by the accused. What is stated in the exhibit P15 letter is that he can present the cheque after one month. In exhibit P16 he requested for further time of 15 days. These aspects cannot amount to give consent to put the amount in the blank column and also the date/The Supreme Court in Jusum Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd., laid down the ingredients that have to be satisfied for making out a case under Section 138 of the Act. It is clear from the first ingredient mentioned a person must draw a cheque on the account maintained by him in a bank for payment of certain amount of money. Hence, it is clear from the principles laid down by the Supreme Court that the amount for which the cheque was drawn must be for a certain amount of money. If a person delivers the cheque without putting the actual amount payable, does it constitute a cheque within the meaning of Sections 5 and 6 of the Act?” (d) In the order dated 19.02.2007 in Crl.MC.No.691 of 2006, P.A.DEVASSIA VS. GEORGEKUTTY PETER, it is observed and held as follows: The short, crucial and the vital contention raised is that the figure “1” written by him has been altered as “6” and the figure “2” has been written in front of “Rs.15,000/-”, after altering “1” as “6”. The name of the payee and the amount in words were not entered by him, Crl.M.C.No.691 of 2006:-2:-it was contented. The cheque now is for the amount of Rs.2,65,000/-. 2. This application was opposed. It was contended that the attempt is only to protract the proceedings. Reliance was placed on the decision in Francis v. Pradeep ( 2004(2) KLT 1080 ). The learned Magistrate exercised his discretion against the petitioner and held that the cheque need not be sent to the expert. According to the learned Magistrate, mere perusal of the cheque makes it very evident that there is absolutely no alteration and there is no prima facie material to support the case regarding material alteration. 3. The learned Magistrate exercised his discretion against the petitioner and held that the cheque need not be sent to the expert. According to the learned Magistrate, mere perusal of the cheque makes it very evident that there is absolutely no alteration and there is no prima facie material to support the case regarding material alteration. 3. There can be no doubt that if the expert's evidence can lead to a competent opinion as to whether the first two digits of the figure “Rs.2,65,000/-” has been altered or not, that will be of great help in properly resolving the controversy before Court. A photocopy of the cheque has been placed before me by the learned counsel for the respondent/complainant fairly. I shall not venture to express any opinion by the naked eye perusal of the photocopy of the cheque. At any rate, I am of opinion that the interests of justice will be better served by accepting the request of the petitioner to send the cheque to the expert for Crl.M.C.No.691 of 2006:-3:- examination. In coming to this conclusion, I take note of the very consistent stand from the date of sending the reply taken up by the accused. It cannot be lost sight of that at that point of time, the original cheque was available with the complainant and the defence count not have moulded by looking at the cheque. I am satisfied, in the facts and circumstances of this case, that the cheque deserves to be sent to the expert. The decision in Francis vs. Pradeep (2004(2)KLT 1080) is not authority for the proposition that merely because the signature in the cheque is admitted, it is not necessary in any case to forward the cheque to the expert for comparison. The facts of this case will have to be considered carefully. I have adverted to this aspect in the decision in Bindu v. Sreekantan Nair (2007(1)KLT 525). The decision is Francis v. Pradeep (2004(2)KLT 1080) cannot, in the facts and circumstances of this case, be a sufficient justification to refuse to send the cheque to the expert. 4. The learned counsel for the respondent/complainant submits that the attempt is unnecessary and is calculated to delay and protract the proceedings. It is easy for the court to see through such an attempt to delay and protract the Crl.M.C.No.691 of 2006:-4:- proceedings. 4. The learned counsel for the respondent/complainant submits that the attempt is unnecessary and is calculated to delay and protract the proceedings. It is easy for the court to see through such an attempt to delay and protract the Crl.M.C.No.691 of 2006:-4:- proceedings. If ultimately it were found that there is no material alteration and the cheque was issued for the due discharge of a legally enforceable debt/liability and the accused is culpably responsible under Section 138 of the N.I.Act, an appropriate direction for payment of compensation including a direction to pay interests on the cheque amount from the date of dishonour to the date of payment can certainly be issued by the learned Magistrate as laid down by this Court in the decision reported in Sathyan v. Housu (2006(4) KLT 923). In cases like this if the delay in disposal is attributable to such unnecessary steps taken by the accused, certainly the courts are obliged in the interests of justice to issue such directions. 5. With the above observation, this Crl.M.C is allowed. The impugned order is set aside. The learned Magistrate is directed to send the cheque to the expert for opinion”. (e) In the decision 2005(1)ALD Cri 38, RAMACHANDRAN V. DINESAN, in paragraph No.4 the Kerala High Court has observed as follows. Further in the aforesaid decision in paragraph Nos. 8 & 9 it is held and observed as follows: “4. The learned counsel appearing for the revision petitioner has argued that there is material alteration, in Ext.P.1 cheque. It is contended that originally the figure written in the cheque was Rs.25,000/- and the figure “1” was added subsequently. It is argued that both the Courts had concurrently found that there was correction in the figures. It is argued that correction of the figure written in a cheque subsequently without the knowledge of the drawer is a material alteration which makes the document void. It is argued that once the 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. 8. In Loonkaran Sethia v. Ivan E. John, AIR 1977 SC 336 , the Apex Court had considered the effect of material alteration in the document. 8. In Loonkaran Sethia v. Ivan E. John, AIR 1977 SC 336 , the Apex Court had considered the effect of material alteration in the document. It was held as follows:-- “If an alteration (by erasure, interlineation, or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorized the alteration and those claiming under him, from putting-the deed in suit to enforce against any party bound by it, who did not consent to the alteration, any obligation covenant, of promise thereby undertaken or made”. It was further held as follows:-- “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 cheque may be material alteration. So, I hold that there is material alteration of Ext.P.1 cheque. 9. The next question to be considered is what exactly is the effect of material alteration. Section 87 of the Negotiable Instruments Act deals with the effect of material alteration. It reads as follow:-- “87 Effect of material alteration.--Any material alteration of a negotiable instrument renders the same void as against any one who is 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. 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”. The basic principles of law is that any change in a written instrument which changes the legal identity or business character of the instrument, either in its terms or in the legal relation of the parties to it, is a material alteration and such a change in validates the instrument against the person not consenting to the change. This principle of law is essential to the integrity and sanctity of contracts. By alteration, the identity of the instrument is destroyed. So, the effect of making a material alteration on a negotiable instrument without the consent of the party bound under it is exactly the same as that cancelling the instrument.” Moreover, in the said order it is also stated thus: “So, if there is any material alteration in the cheque which renders it void, no criminal prosecution can be launched based on such a cheque. The Courts below had not considered this material aspect while holding that the revision petitioner is guilty of an offence under Section 138 of the Negotiable Instruments Act. Since the cheque itself is an invalid one, no prosecution is possible under such a document and the revision petitioner is entitled to an acquittal”. (f) Apart from the above, the learned counsel for the respondent/accused seeks in aid of the order dated 04.08.2011 between NANDKUMAR VS.VISHWAS AND OTHERS, wherein in paragraph Nos. 18 and 19 and further in paragraph Nos.22 and 23, it is observed and held here under: “18. Moreover, as observed by the Hon.Apex Court, in the case of T.Nagappa Vs. Y.R. Muralidhar (supra), what should be the nature of the evidence of the petitioner/accused should be left open to him, and accused knows how to prove his defence and ordinarily accused should be allowed to approach the Court(15) for obtaining its assistance with regard to summoning of witnesses etc. Y.R. Muralidhar (supra), what should be the nature of the evidence of the petitioner/accused should be left open to him, and accused knows how to prove his defence and ordinarily accused should be allowed to approach the Court(15) for obtaining its assistance with regard to summoning of witnesses etc. In the instant case, since the accused preferred application Exhibit 48, requesting to send the documents at Exhibits 29/1 and 29/2, bearing disputed handwriting of the complainant, along with the admitted handwriting of the complainant, for obtaining handwriting expert's opinion, in fact, which should have been allowed by the learned trial court or, at least, by the learned Sessions Court, in the revision to meet the ends of justice. However, simultaneously, there is no doubt that the accused should not be permitted to protract the trial unnecessarily. Hence, the apprehension posed by the respondent No.1, in respect of protracting the trial by the accused, can be met with by giving specific directions to the handwriting expert to submit the expert's opinion within stipulated period and thereby, endeavor can be made to achieve the spirit of Section 143, Sub-Sections 2 and 3, of the Negotiable Instruments Act. 19. As regards argument canvassed by the learned counsel for respondent no.1, in respect of Section 73 of the Evidence Act, it is material to note that both the said documents Exhibits 29/1 and 29/2 were confronted to the complainant during cross examination and handwriting thereon was denied by the complainant, and therefore, it is not advisable and desirable also, to cast burden upon learned Judicial Magistrate (F.C.) to (16) compare handwriting on the said documents and admitted handwriting of the complainant, since the caution under Section 73 of the Evidence Act cannot be overlooked and it is guiding principle that the Court should be slow to compare disputed document with admitted document for comparison although Section 73 empowers the Court to compare disputed writings with the specimen / admitted documents shown to be genuine. Moreover, prudence demands that court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen / admitted writings is not of high standard. Therefore, despite no legal bar to Judge using his eyes, the Judge should hesitate to base his findings with regard to identity of handwriting solely on comparison made by himself. Therefore, despite no legal bar to Judge using his eyes, the Judge should hesitate to base his findings with regard to identity of handwriting solely on comparison made by himself. Hence, it is necessary to send two documents at Exhibits 29/1 and 29/2, and the admitted handwriting of the complainant, to the handwriting expert for obtaining expert's opinion to meet the ends of justice and to enable the accused to substantiate his defence before the court properly. 22. In the circumstances, present petition deserves to be allowed, by exercising extraordinary jurisdiction of this Court under Article 227 of the Constitution of India, and by quashing and setting aside the order passed by the learned trial Court, as well as, order passed by the learned Sessions Court, and the application Exhibit 48, preferred by the accused, also deserves to be allowed to the extent of prayer clause 1 thereof, but simultaneously, it is required to be directed to the handwriting expert 10 submit his opinion within stipulated time frame. 23. 23. In the result, present petition is allowed, and the order passed by the learned Judicial Magistrate (F.C.), Court NO.6, Latur, below Exhibit 48, in S.T.C. No.1734/2009, dated 11th June 2010, and also the order passed by the learned Additional(19) Sessions Judge, Latur, in Criminal Revision No.114/2010, dated 7th January 2011, stand quashed and set aside, and the application Exhibit 48, dated 13.04.2010, preferred by the petitioner/accused, in S.T.C.No.1734/2009, stands allowed to the extent of prayer clause 1 thereof, and it is directed that the document No.1 below Exhibit 29 i.e. “chit of transaction”, and document No.2 below Exhibit 29 i.e. “diary of the transaction”, and the admitted handwriting of the complainant which is to be obtained by the learned Trial Court before it from the complainant, be sent to the Government Handwriting Expert for obtaining the expert's verification/opinion in respect of the disputed handwriting on Exhibits 29/1 and 29/2 and the said Government Handwriting Expert is directed to submit his opinion within a period of one month from the date of receipt of the aforesaid documents to the said office, scrupulously, and the petitioner/accused is directed to deposit the amount of Rs.1000/- (Rupees one thousand) tentatively before the learned Trial Court towards charges of the handwriting examination, and the learned Trial Court is also requested to expedite hearing of the said trial after receipt of the said report of the Handwriting Expert”. (g) The Learned counsel for the Respondent/Accused cites the decision of the Hon'ble Supreme Court in AIR 1977 SUPREME COURT 336 between LOONKARAN SETHIA VS. MR.IVAN E.JOHN AND OTHERS, it is held thus: “(B) Deed-Construction-Material alteration without consent of party liable under it – Effect. (g) The Learned counsel for the Respondent/Accused cites the decision of the Hon'ble Supreme Court in AIR 1977 SUPREME COURT 336 between LOONKARAN SETHIA VS. MR.IVAN E.JOHN AND OTHERS, it is held thus: “(B) Deed-Construction-Material alteration without consent of party liable under it – Effect. If an alteration (by erasure, interlineation, or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound by it who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made.(Paras 23, 30) 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 certainly 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. AIR 1940 PC 160, Rel.on”. (h) The Learned counsel for the Respondent/Accused cites the order dated 04.07.2012 between MR.G.G.SELVIN V. MR.PRAKASH S NANDAGRI, the Karnataka High Court wherein in Paragraph Nos.6 to 10 it is observed and held thus: “The learned appellate Judge weighed the evidence tendered by the complainant and the defence as also the expert opinion secured during the trial. It opined firstly, the complainant had failed to establish that the accused was due in a sum of Rs.2,30,000/-towards the chit amount. Secondly, it noticed that the cheque impugned had material alterations which the complainant had denied but the scientific examination of the impugned cheque revealed it was materially altered and since there was material alteration, it was held to be unenforceable. It resulted in acquittal of the respondent against which the complainant is in this appeal. 7. Secondly, it noticed that the cheque impugned had material alterations which the complainant had denied but the scientific examination of the impugned cheque revealed it was materially altered and since there was material alteration, it was held to be unenforceable. It resulted in acquittal of the respondent against which the complainant is in this appeal. 7. Learned counsel for the appellant reiterates the allegation that the accused had received monthly contribution and was liable to pay the chit amount and towards that liability, he had issued the impugned cheque which was dishonoured for insufficient funds. He submits 5 the accused had failed to comply with the demands made in the statutory notice necessitating prosecution. He submits that the ingredients constituting offence under Section 138 of the N.I. Act are established. The learned counsel further submits plethora of case laws on this subject would show that material alterations in the cheque would not render the cheque unenforceable. Ofcourse, he has not cited or produced any citations but refers to the finding of the appellate court as unsustainable. 8. Keeping in mind what is urged against the finding of the learned appellate Judge, I have perused the records in supplementation thereto. It needs no mention that the complainant is the one who had initiated the legal battle to punish the respondent with a penal action. Had he succeeded, the respondent would have been sentenced to imprisonment even upto a term of two years as prescribed by Section 138 of the N.I.Act. Necessarily, we expect in such transaction evidence worthy of acceptance to establish the charge. In this endeavor, the complainant tendered evidence as PW1 and relied on seven documents 6 but the accused thwarted all these attempts pointing out to material alterations in the cheque. It is seen the cheque is for Rs.2,30,000/- written in words and in figures. The experts have found that initially, the amount mentioned was Rs.30,000/-on which 2 numerical has been added in the beginning to make it Rs.2,30,000/-. The question is not as to whether the accused is due Rs.30,000/- or Rs.2,30,000/-, but the question is whether the cheque could be enforced with material alterations when are unexplained and unauthenticated by the drawer. For this purpose, the learned appellate Judge had referred to the disputed entries referred to handwriting expert's opinion and FSL has sent back the report confirming the alterations. For this purpose, the learned appellate Judge had referred to the disputed entries referred to handwriting expert's opinion and FSL has sent back the report confirming the alterations. In this view, the question that arises for consideration is when the cheque, on the basis of which the prosecution was launched was found to be materially altered unenforceable in law, could the prosecution succeed. 9. The learned appellant Judge has recorded the following observations in the judgment. 7 “The lower court failed to appreciate that when the material alteration is proved, the entire document will become void. So, relying upon a void document where there is a material alteration, no conviction can be given to the accused on the basis of such void documents.” 10. He has also referred to other ocular testimony of DW-1 the complainant, DW2-the expert of the FSL that entries were not in the handwriting of the accused. In this view, the finding of the learned trial Judge that no contrary evidence is produced by the complainant to disbelieve the evidence of the expert that there is material alteration and as such, the cheque was unenforceable cannot be faulted. I cannot summon myself to differ from the view taken by the learned appellate Judge. Leave declined. The appeal is dismissed.” (h) In the decision of the Hon'ble Supreme Court in 2007 (2) CTC 364 between KALYANI BASKAR VS. M.S.SAMPOORNAM, wherein in paragraph nos. 12 to 14, it is observed and held as under: “12. Section 243(2) is clear that a Magistrate holding an inquiry under the Cr.P.C in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz., the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. “Fair trial” included fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243, Cr.P.C without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2), Cr.P.C refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstance, the order of the High Court impugned in this Appeal upholding the order of the Magistrate is erroneous and not sustainable. 13. For all the foregoing reasons, we allow this appeal and set aside the order of the High Court dated 10.02.2004 passed in Criminal Revision Case NO.335 of 2002 by which the order dated 15.11.2001 of the Judicial Magistrate made in Crl.M.P.No.341 of 2001 in C.C.No.439 of 1998 dismissing the Application of the appellant under Section 243, Cr.P.C was affirmed. Accordingly, Crl.M.P.No.341 of 2001 in C.C.NO.439 of 1998 on the file of the Judicial Magistrate, Tambaram, Chennai shall stand allowed. Accordingly, Crl.M.P.No.341 of 2001 in C.C.NO.439 of 1998 on the file of the Judicial Magistrate, Tambaram, Chennai shall stand allowed. The learned Magistrate shall take appropriate steps for obtaining the report of handwriting expert on the point whether the signature in the cheque is that of the accused and shall proceed with the trial of the case in accordance with law. Since the case is very old, further proceedings shall be taken with utmost expedition. 14. We make it clear that any observation made in this order shall not be construed as an expression of opinion on the merits of the case and the same shall be decided by the Magistrate on its own merit.” 16. At this juncture, this Court aptly quotes the decision, T.KALAVATHI V. VEERA EXPORT in 2002 BC 1247 MADRAS, wherein it is held that, “where material alteration made by the accused in Negotiable Instruments Act, after expiry of period of validity, it would render the said instruments void, hence the complaint on the basis of invalid, Negotiable Instruments Act could not be maintained.” 17. The effort of the Section 87 of the Negotiable Instruments Act is that such document is void and as such non-est. The technical defence or absence of plea should not drive the court on such occasion especially with reference to the contention and evidence. 18. Ordinarily, 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. Any such alteration if made by an endorsee discharges his endorser from all liable to him/her in respect of the consideration thereof in the considered opinion of this Court. 19. It is useful for this Court to refer to the contents of the petition in Crl.M.P.No.526 of 2012 (filed by the respondent/accused) which proceeds to the effect that in never borrowed amount from the complainant and she has not issued the cheque No.365151 in her favour and actually borrowed the amount of Rs.50,000/- from her husband's brother Abdul Kareem and issued two cheques bearing No.365151 and 365152 of her account at Canara Bank, College Road, Nagercoil and further that while issuing the cheque he filled the figure as Rs.50,000/- (Rupees fifty thousand only). The amounts in words was not written by her and in the cheque her signature and the amount of Rs.50,000/-. The said Abdul kareem and the revision petitioner/complainant colluded together and that the figure of Rs.50,000/- is changed as Rs.5,50,000/- and other blanks are filled by the complainant. Further it is the case of the respondent/accused that the cheque bearing No.365151 contains two different figures. Before the figure amount of Rs.50,000/- the figure of 5' is added and then the amount is written words, these are to be investigated and experimented and that the case is posted for cross examination of PW1 and it is necessary to form a opinion by the handwriting and forensic Scientific Department Expert. The Respondent/Accused has prayed for passing of an order by the trial Court in Crl.M.P.No.526 of 2012 in C.C.No.239 of 2012 to send the Ext.P.1 cheque for handwriting and Forensic Scientific Department Expert for obtaining an opinion in the matter in issue. 20. The Revision petitioner/complainant in her counter the Crl.M.P.No.526 of 2012 in C.C.No.239 of 2012 in paragraph No.3 has stated that the respondent/accused has admitted his signature in Ext.P.1 cheque and before depositing the said cheque in SBI, Kottar Branch and sent for collection to Canara Bank, College Road, no steps have been taken by the petitioner to get return of the cheque from the alleged partner Abdul Kareem and during the pendency of the cheque case, the accused has sent a notice on 15.09.2011 to the complainant/revision petitioner and Abdul Kareem is msiterious with sinister, dishonest, disastrous motive and it has no evidentiary value etc. Moreover, it is also stated that the complainant has been examined as P.W.1 and the evidence of P.W.1 is the cheque in full form has already been prepared by the respondent/accused and handed over the same to the complainant/revision petitioner and borrowed Rs.5,50,000/- and nothing has been brought out by the cross examination as against the revision petitioner/complainant and moreover the respondent/accused is playing gambling litigation with malafide intention. 21. The required opinion of Handwriting Expert is sought for on the following aspects: (i) To find out whether the original figure Rs.50,000/-whether the 5' is added before Rs.50000/- or not. (ii) Whether it is two different type i.e.50000/- and 5' are separate type. 22. 21. The required opinion of Handwriting Expert is sought for on the following aspects: (i) To find out whether the original figure Rs.50,000/-whether the 5' is added before Rs.50000/- or not. (ii) Whether it is two different type i.e.50000/- and 5' are separate type. 22. It is to be noted that in the decision of Hon'ble Supreme Court in Union of India V. Jyoti Prakash Mitter reported in AIR 1971 SC 1093 at 1098 to 1100, in paragraph Nos.10 to 12, it is observed as follows: "10. After consultations between the Ministry of Home Affairs and the Ministry of Law, the Home Ministry sent certain old writings of the year 1904, 1949, 1950 and 1959, and requested the Director to determine the age of the writing of the disputed horoscope and marginal note in the almanac by comparison. The Director on April 17, 1965 wrote that it "was impossible to give any definite opinion by such comparisons particularly when the comparison writings were not made with the same ink on similar paper and not stored under the same conditions as the documents under examination", and that it "will not be possible for a document expert, however reputed he might be, anywhere in the world, to give any definite opinion on the probable date of the horoscope and the ink writing in the margin of the almanac". 11. After receiving the second report from the Director, the Ministry of Law raised the question about the opportunity to be given to the respondent before the President in the enquiry for determining the age of the respondent under Art. 217 (3) . It was then decided to refer the question to the Chief Justice of India for his advice. On July 24, 1965 the Chief Justice of India advised the President about the procedure to be adopted in the determination of the age of the respondent. Thereafter pursuant to a suggestion made by the Law Minister the Ministry of Home Affairs wrote to the respondent on July 31, 1965 requiring him to state the date or year of the horoscope. The respondent by his letter dated August 4, 1965, stated that it was not possible for him to give definitely the date or year of the horoscope but he asserted that it was at least in existence in the year 1921 when it was consulted on the occasion of his marriage. The respondent by his letter dated August 4, 1965, stated that it was not possible for him to give definitely the date or year of the horoscope but he asserted that it was at least in existence in the year 1921 when it was consulted on the occasion of his marriage. On February 23, 1965 the respondent addressed a telegram to the President requesting that an early decision of the question of his age may be reached. On March 15, 1965 he addressed another telegram to the President requesting leave to produce other documentary evidence which he claimed may be available in East Pakistan, but sometime thereafter he informed the Secretary, Ministry of Home Affairs, that owing to lack of co-operation on the part of the people in East Pakistan it was not possible to get the evidence which was mentioned in his letter to the President and that he must content himself with the evidence he had already produced and which in his view was "overwhelming". He further stated : "You can, therefore, take it that I have no evidence to produce on the subject of my age, unless I am driven to call an expert or experts as indicated by me in my letter to you, dated 3rd February, 1965". On August 13, 1965, copies of the reports of the Director of the Forensic Science Laboratory were forwarded by the Home Secretary to the respondent with a forwarding letter by which the respondent was informed that if he had any comments to make on the opinion expressed by the Director they may be submitted and that if the respondent desired he may also adduce evidence in rebuttal in the form of expert opinion supported by proper affidavit, and that the comments, evidence and affidavits, if any, may be sent within one month of the letter. On receipt of the letter of the Home Secretary the respondent sent a telegram addressed to the Home Secretary on September 1, 1965, praying that the President may call for all papers and documents, if not already sent for and grant him an audience, "If at all necessary". The respondent also wrote a letter on that day submitting that the evidence tendered by him was "conclusive" and there was no question of adducing any further evidence or any evidence in rebuttal. The respondent also wrote a letter on that day submitting that the evidence tendered by him was "conclusive" and there was no question of adducing any further evidence or any evidence in rebuttal. He also submitted that the entry in the Bihar and Orissa Gazette (declaring him successful at the matriculation examination) was erroneous and concluded the letter that all relevant documents be placed before the President, and that the President "may be graciously pleased to grant "him" an audience for the purpose of deciding the question of his age". 12. The file of the respondent's case was then submitted to the President. On September' 16, 1965 the President referred the matter to the, Chief Justice of India asking him for his advice. On September 28, 1965 the Chief Justice recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901. The Chief Justice set out in detail all the evidence including the reports of Dr. Iyengar, Director of the Central Forensic Science Laboratory, Calcutta bearing on the dispute as to the true date of birth of the respondent. The Chief Justice of India thereafter observed : ".......... the question which the President has to decide is whether the date of Mr. Mitter's birth mentioned on the occasions when he appeared for the Matriculation Examination as well as for the Indian Civil Service Examination, is incorrect; and that would naturally turn upon whether it is shown that the entry in ink on the margin of the almanac showing that Mr. Mitter was born on 27-12-1904, was contemporaneously made and is correct as alleged by him. The horoscope on which Mr. Mitter relies, refers to the date and time of his birth, but that does not help Mr. Mitter very much, because it is obviously based upon information given to Jyotish-Sastri Shri Jogesh Chandra Deba Sarma on the basis of the entry in the almanac. I have carefully considered the reports made by Dr. Iyengar, the comments on them made by Mr. Mitter, the affidavits on which Mr. Mitter relies, and the almanac and the horoscope on which he bases his case. I have also taken into account all the other relevant facts relating to the past history of this dispute, the conduct of Mr. I have carefully considered the reports made by Dr. Iyengar, the comments on them made by Mr. Mitter, the affidavits on which Mr. Mitter relies, and the almanac and the horoscope on which he bases his case. I have also taken into account all the other relevant facts relating to the past history of this dispute, the conduct of Mr. Mitter, the grounds on which he challenged the earlier orders passed in this matter, and I have come to the conclusion that it is not shown satisfactorily that the entry in ink on the margin of the almanac was made contemporaneously and is correct as alleged by Mr. Mitter. I am, therefore, unable to accept his case that the date of his birth which was shown at the time when he appeared for the Matriculation Examination as well as for the I.C.S. Examination "was exaggerated". I would, therefore, advised the President to hold that Mr. Mitter has failed to show that he was born on 27-12-1904 and not on 27-12-1901; and that the question about his age should be decided on the basis that be was born on 27-12- 1901". The file containing the advice was then returned to the President. It appears however that after the file was received in the President's Secretariat, it was sent to the Secretary, Ministry ofHome Affairs for putting it up before the Home Minister before submitting it to the President. The Home Secretary on September 29, 1965 put up the matter before the Home Minister with the following endorsement : "A summary of the case will be found at slip 'Z'. The Chief Justice of India has offered his advice in his minute........ after going into the relevant material, H.M. (Home Minister) may recommend to the President ,that the age Shri J. P. Mitter may be determined in accordance with the advice of the Chief Justice of India." Home Minister and the Prime Minister countersigned that endorsement. The file was then placed before the President on the same day i.e. September 29, 1965. The President recorded his decision that he accepted "the advice tendered by the Chief Justice of India and "decided" that the age of Sri Jyoti Parkash Mitter should be determined on the basis that he was born on the twenty-seventh December nineteen hundred and one". 23. The President recorded his decision that he accepted "the advice tendered by the Chief Justice of India and "decided" that the age of Sri Jyoti Parkash Mitter should be determined on the basis that he was born on the twenty-seventh December nineteen hundred and one". 23. Also, this Court points out the decision in Yash Pal V. Kartar Singh reported inAIR 2003 Punjab and Haryana 344, wherein, in paragraph No.5 observed as under: "A perusal of the aforementioned provision shows that a discretion has been vested in the Civil Court to get any scientific investigation conducted only if it thinks necessary or expedient in the interest of justice. The basic rationale of the provision is that if the opinion of the scientific investigation is going to help in extracting the truth and determining the controversy raised in the dispute before the Court then such an investigation could be permitted. However, in the present case, such investigation is not likely to help to conclusively prove that the writing dated 11.2.1998 was infact recorded earlier because the age of the ink cannot be determined on the basis of the writing. If the ink is manufactured five years before the date of the execution of the document and used on 11.2.1998 for the first time then instead of resolving any controversy it would create confusion. Therefore, no useful purpose could be served by allowing such an application. It is true that opinion of expert is relevant under Sections 45 and 46 of the Indian Evidence Act, 1872 but in the present case that has to be read with Order 26. Rule 10 A of the Code. The basis rationale is whether such scientific investigation is going to advance the cause of justice and would be necessary for adjudicating upon the rights of the parties. Therefore, I do not find any ground to interfere in the well reasoned order passed by the learned Civil Judge. The revision petition does not disclose any irregularity or illegality warranting interference of this Court in exercise of its jurisdiction under Section 115 of the Code." 23. At this stage, this Court deems it appropriate to cite the decision of this Court in R.Jagadeesan V. N.Ayyasamy (Crl.R.C.49/09) and K.Meignanavel (Crl.R.C.50/09) – 2010-1-L.W.(Crl.)165 at Special Pages 167, 168 and 169, in paragraph Nos.6 to 10, it is observed and laid down as follows: 6. At this stage, this Court deems it appropriate to cite the decision of this Court in R.Jagadeesan V. N.Ayyasamy (Crl.R.C.49/09) and K.Meignanavel (Crl.R.C.50/09) – 2010-1-L.W.(Crl.)165 at Special Pages 167, 168 and 169, in paragraph Nos.6 to 10, it is observed and laid down as follows: 6. There can be no denial of the fact that the accused needs to be afforded a fair trial to exhaust all his defences available to him. Fair trial is the sine qua non of criminal jurisprudence and the same has been recognised as a fundamental right under Article 21 of the Constitution of India. To prove that the handwriting was not made by him or that the signature was not made by him, the accused can very well request the Court to forward the document for expert opinion. But the question is, in respect of the age of the writings on a document whether there is any expert in terms of Section 45 of the Evidence Act, who shall be competent to examine the same scientifically and to offer his opinion. The term expert denotes, persons specially skilled in the particular field. Under Section 45 of the Evidence Act, it is for the Court to first of all take a decision as to whether a particular individual is an expert in the particular field for a particular purpose. In such a way, if it is found that there is an expert who can find out the age of the writings on a document by means of any scientific method, certainly he would fall within the ambit of Section 45 of the Evidence Act to offer such opinion. But the learned counsel for the petitioner would submit that there is no such scientific method available for offering any such opinion. "7. In order to ascertain the correctness of the said statement, this Court had requested the learned Additional Public Prosecutor Mr.N.R.Elango to request either the Director or the Assistant Director, Document Division, Forensic Science Department, Chennai to be present before this Court to explain the position. Accordingly, today, Mr.A.R.Mohan, Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu, Chennai is kind enough to be present before this Court. According to him, he is the Head of the document division of the department. Accordingly, today, Mr.A.R.Mohan, Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu, Chennai is kind enough to be present before this Court. According to him, he is the Head of the document division of the department. On a query made by this Court regarding the above position, he would explain to this Court that there is no scientific method available anywhere in this State, more particularly, in the Forensic Science Department, to scientifically assess the age of any writing and to offer opinion. However, he would submit that there is one institution known as Nutron Activation Analysis, BARC, Mumbai, where there is facility to find out the approximate range of the time during which the writings would have been made. It is a Central Government organisation. According to him, even such opinion cannot be exact. He would further submit that since it is a Central Government Organisation and confined only to atomic research, the documents relating to prosecutions and other litigations cannot be sent to that institution also for the purpose of opinion. He would further submit that if a document is sent for comparison, with the available scientific knowledge, opinion to the extent as to whether the same could have been made by an individual, by comparing his admitted handwritings or signatures, alone could be made. He would further submit that if there are writings with two different inks in the same document, that can alone be found out. But he would be sure enough to say that the age of the writings cannot be found out at all to offer any opinion. 8. In view of the above clear and unambiguous statement made by no less a person than the Head of the Department of Forensic Science, I am of the view that the whole exercise adopted in various Courts in this State to send the disputed documents for opinion to the Forensic Department in respect of the age of the writings and the documents is only futile. If any document is so sent, certainly the department will say that no opinion could be offered. As a matter of fact, the Assistant Director would inform the Court that already many such documents, which were sent to them by various Courts in the State for such opinion, have been returned by them with the report that no such opinion could be offered. 9. As a matter of fact, the Assistant Director would inform the Court that already many such documents, which were sent to them by various Courts in the State for such opinion, have been returned by them with the report that no such opinion could be offered. 9. In view of all the above, in my considered opinion, sending the documents for opinion in respect of the age of the writting on documents should not be resorted to hereafter by the Courts unless, in future, due to scientific advancements, new methods are invented to find out the age of the writings. 10. Now I have to consider the judgments relied on by the learned counsel on either side. In T.Nagappa's case reported in (2008) 5 Supreme Court Cases page 633, I have to state that the question whether the age of the writings could be scientifically examined and any opinion in this regard could be offered never came up for consideration before the Hon'ble Supreme Court. In that case, the Hon'ble Supreme Court was concerned with the right of the accused to have fair trial so as to send the document for comparison by an expert. It was never argued before the Hon'ble Supreme Court that there are no experts available to examine the age. Therefore, the Judgment of the Hon'ble Supreme Court relied on by the respondents is not in any manner helpful to them. The learned counsel for the petitioner has relied on the Judgment of this Court in S.Gopal's case wherein Hon'ble Mr.Justice M.Jeyapaul has held that there is no method to find out the age of the document with scientific accuracy. However, the learned counsel appearing for the respondents would submit that this Judgment was prior to the Judgment of the Hon'ble Supreme Court. He would therefore submit that subsequently in another Judgment reported in 2009 INDLAW MAD 1077 (V.P.Sankaran Vs. R.Uthirakumar), this Court has directed to forward the document for such opinion. In my considered opinion, a careful reading of the said Judgment would also go to show that there was no occasion for the learned Judge to answer the question as to whether there is any expert available in terms of Section 45 of the Evidence Act to offer any opinion regarding the age of the document. In my considered opinion, a careful reading of the said Judgment would also go to show that there was no occasion for the learned Judge to answer the question as to whether there is any expert available in terms of Section 45 of the Evidence Act to offer any opinion regarding the age of the document. The entire case proceeded under the premise as though there are experts to offer opinion regarding the age of the documents. Now, as I have already stated, the Head of the Department of Forensic Science is before me and from whom I have the benefit of ascertaining that there is no expert in the field and also that all such documents sent already were returned without offering any opinion. Therefore, the said Judgment also would not come to the help of the respondents. 24. An alteration of a Negotiable Instrument is material if it changes its legal character or its scope as means of evidence, in the considered opinion of this Court. Integrity and sanctity of contracts are to be preserved and the object is to prevent fraud and deter persons from tampering with the written instruments. Where an instrument appears altered, it is the primordial duty on the part of the plaintiff to show that the alteration was not improperly made as per decision in JAYANTILAL GOEL V. ZUBEDA KHANUM, AIR 1986 AP 120 . 25. As far as the present case is concerned, the plea of the Respondent/Accused (as petitioner in Crl.M.P.No.526 of 2012 before the trial Court) is that while issuing the cheques she filled the figure as Rs.50,000/-and that the amount in words 'five lakhs fifty thousand only' were not written by her and in the cheques her signature and the amount figure of Rs.50,000/- was there and that Abdul Kareem and the complainant/revision petitioner colluded together and that the figure of Rs.50,000/-has been changed as Rs.5,50,000/- and other blanks are filled up by the complainant. 26. In law, the following are declared to be Material Alteration; (i) The date (ii)the sum payable (iii)the time of payment (iv) place of payment (v) the addition of a place of payment is mentioned by the accepter, without the accepters consent. 27. As per Section 9 of the Negotiable Instrument Act to be a Holder in Due Course, one must be a Holder for consideration. 27. As per Section 9 of the Negotiable Instrument Act to be a Holder in Due Course, one must be a Holder for consideration. The instrument should have been transferred to her/him before it becomes overdue. Further one must be transferee in good faith and that she should not have any reason to believe that there was any defect in the title of the transferor. Really speaking the 'Holder in Due Course' includes person who comes into possession of the cheque. It is necessary for an individual/Holder in Due Course that he/she should get possession of the instrument(if payable too or to the order of the payee. If at the time of negotiation of an instrument the holder has fully knowledge that it was issued containing with blanks, he /she is put on enquiry as to the authority or the extent of the authority of her endorser to complete the instrument. When an incomplete the note is given to an agent with authority to fill the blank, the authority to complete the note must be exercised before the termination of the agency. 28. Section 20 of the Negotiable Instrument Act 1881 authorises that where a pronote is signed and delivered to another person on a properly stamped and either left blank or as an incomplete document, the person to whom the pronote is handed over will have prima facie authority to make the document complete. 29. The authority implied by a signature to a blank instrument is so wide that the party so signing is bound to a holder in due course even though the holder was authorised to fill for a specified amount, and he/she in fact inserts a greater amount. However, it is essential that the amount must not exceed the one covered by stamp. 30. If a blank is left for the rate of interest authority is not implied to fill in a rate greater than the legal rate, and the holder doing this would commit a material alteration. 31. However, it is essential that the amount must not exceed the one covered by stamp. 30. If a blank is left for the rate of interest authority is not implied to fill in a rate greater than the legal rate, and the holder doing this would commit a material alteration. 31. Where signatures of the defendant in promissory note were admitted and burden shifted on the defendant that there was material alteration in pronotes and that he had not borrowed the amount in such pronotes, which the defendant had not proved, the plaintiff was held to be holder in due course of the pronotes and was liable to pay the amount as per decision K.MANI V. EZHUMALAI III 2002 BC 627 (MADRAS). 32. The presumption under Section 139 of the Negotiable Instruments Act in favour of the complainant that he was holder a cheque could be drawn only if it was established by evidence and other materials on record. The complainant was bound to establish the basis for drawing and presumption, as per decision V.K.GEMINI V. CHANDRA 2007 CRLJ 1285 (KER). 33. It is to be borne in mind that unless the conditions satisfied in Section 138 of Negotiable Instruments Act are satisfied no criminal liability can be mulcted as opined by this Court. 34. Presumption under Section 118 of the Negotiable Instruments Act is in favour of the plaintiff ordinarily. The mere possession of a cheque is not sufficient to become the 'holder' and only when conditions specified under Sections 8 were specified. Further, a Holder in Due Course is entitled to better rights then the transferror. 35. The Revision petitioner/complainant has denied the allegation of the respondent/accused that the Abdul Kareem and the complainant has colluded together and that the figure of Rs.50,000/- has been changed as Rs.5,50,000/- and other blanks are filled by the complainant. 36. Ordinarily, it matters small if the name of the payee different and the amounts were filled up on a subsequent point of time, subject to the proviso of Section 118 of the Negotiable Instruments Act. 36. Ordinarily, it matters small if the name of the payee different and the amounts were filled up on a subsequent point of time, subject to the proviso of Section 118 of the Negotiable Instruments Act. In view of the specific stand taken by the Respondent/Accused in Crl.M.P.No.526 of 2012 (petitioner) that she issued the cheques and filled the figure as Rs.50,000/-and that the amount in words were not written by her and that the cheques her signature and the figure amount of Rs.50,000/-were there etc., and also that in view of the categorical plea taken by her that the figure of Rs.50,000/- was changed as Rs.5,50,000/-and other blanks were filled up by the complainant, (although it is disputed by the revision petitioner/complainant), this Court on the basis of the facts and circumstances of the case, opines that obviously a plea of material alteration in Ex.P.1 cheque was taken by the Respondent/Accused in regard to the figure of Rs.50,000/- purposely changed as Rs.5,50,000/-in order to provide an opportunity to the respondent/accused to prove her case in the manner known to law and in accordance with law since a valuable right of the Respondent/Accused cannot be taken away so lightly and does not find any infirmity or illegality in the order of the trial Court while allowing the Crl.M.P.No.526 of 2012 filed by the Respondent/Accused as the petitioner to obtain an opinion of the Handwriting and Forensic Scientific Department Expert to find out whether the figure 5' is added before the figure of Rs.50,000/-or not in the original figure of Rs.50,000/-and also to find out whether it is two different types viz., Rs.50,000/- and 5' are separate type. Consequently, the Criminal Revision Petition fails. 37. In the result, the Criminal Revision Petition is dismissed. The order passed by the trial Court in Crl.M.P.No.526 of 2012 dated 03.07.2012 is confirmed by this Court for the reasons assigned in the Criminal Revision Petition. It is made clear that the dismissal of the Criminal Revision Petition will not preclude the respective Parties to raise all factual and legal pleas before the trial Court at the time of conduct of trial of the main case in C.C.No.239 of 2012 in accordance with law. 38. It is made clear that the dismissal of the Criminal Revision Petition will not preclude the respective Parties to raise all factual and legal pleas before the trial Court at the time of conduct of trial of the main case in C.C.No.239 of 2012 in accordance with law. 38. In as much as the main case in C.C.No.239 of 2012 is pending on the file of the trial Court at part-heard stage, the trial Court in any event is directed to complete the full trial of the C.C.NO.239 of 2012 pending on its file within a period of five months from the date of receipt of a copy of this order, well within the time of five months period fixed by this Court for completion of trial. In the main case in C.C.No.239 of 2012 the trial Court is directed to obtain an Expert opinion in the matter in issue diligently to prevent an aberration of justice.