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2019 DIGILAW 1593 (KAR)

Seema D/o Vasant Khanvilakar v. Shabana M Jamadar

2019-07-05

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. The present appeal has been preferred by the appellant/complainant being aggrieved by the judgment of acquittal passed by the II Addl. Civil Judge and JMFC, Belagavi in C.C.No.1977/2009 dated 14.10.2010. 2. I have heard the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused. 3. The gist of the complaint as per the case of the complainant is that, in the month of August 2003, accused approached him for hand loan of Rs.50,000/- for filling tender of Air Force Station, Sambra. The complainant gave loan of Rs.40,000/- i.e., Rs.30,000/- by way of cash and Rs.10,000/- by cheque. It is further case of the complainant that the complainant was dealing with dress materials. Accused purchased dress material worth Rs.35,000/- and as on the date, the accused was owing a debt of Rs.75,000/- to the complainant. In the month of January, 2005, accused repaid Rs.10,000/- to the complainant by issuing a demand draft, but failed to repay the remaining amount of Rs.65,000/- and on 05.07.2005, accused issued cheque bearing No.140314 for a sum of Rs.65,000/- drawn on Union Bank of India, Kadolkar Galli, Belagavi. When the said cheque was presented for collection through the Canara Bank, the said cheque was dishonoured on 16.01.2006 with the shara 'insufficient funds'. The said fact was brought to the notice of the accused, in spite of which the accused did not pay the cheque amount. Notice was served on accused on 15.02.2006. In spite of service of notice, accused did not pay and as such, a complaint was filed under Section 138 of N.I. Act. Thereafter the Court below took cognizance and secured the presence of the accused. Thereafter the complainant came to be examined as PW1 and got marked Exs. P1 to P8 and thereafter accused came to be examined as DW1 and got marked Exs.D1 to D12. After hearing the learned counsel, the complaint filed came to be dismissed. Being aggrieved by the same, the complainant is before this Court. 4. It is the submission of the learned counsel for the appellant/complainant that the Court below without considering the facts and circumstances of the case has come to a wrong conclusion and has falsely dismissed the complaint. After hearing the learned counsel, the complaint filed came to be dismissed. Being aggrieved by the same, the complainant is before this Court. 4. It is the submission of the learned counsel for the appellant/complainant that the Court below without considering the facts and circumstances of the case has come to a wrong conclusion and has falsely dismissed the complaint. It is his further contention that, in the evidence of the accused, she has admitted the fact that she has issued the cheque, but the said cheque has been issued when a criminal complaint was pending as against her filed by the sister of the complainant. It is his further contention that the Court below has come to a wrong conclusion that there was no legally recoverable debt and even though the cheque at Ex.P1 was containing the date 05.07.2005, only because a dot has been found in the cheque, it has doubted the case of the complainant and ultimately dismissed the same. There are no good grounds to dismiss the complaint. On these grounds he prayed to allow the petition and to convict the accused in accordance with law. 5. Per contra, the learned counsel appearing on behalf of the respondent/accused vehemently argued and submitted that the complainant was dealing with readymade cloth materials. During the year 2003, she purchased cloths and she repaid Rs.10,000/- by demand draft and the complainant by using the influence, filed the complaint and at that time by threatening, they have taken the cheque and subsequently the said complaint was dismissed and the present complaint has been filed for not paying the said amount. 6. It is his further contention that there is a manipulation of the cheque, that itself creates a doubt in the case of the complainant. Even though, there is a legal defect in issuing the demand notice by the complainant, the trial Court after considering the material facts and circumstances has come to a right conclusion and there are no good grounds to allow the appeal and prays to dismiss the appeal. 7. I have carefully and cautiously gone through the submission made by the learned counsel for the parties and perused the records. 8. The learned counsel for the appellant-complainant has raised many issues. 7. I have carefully and cautiously gone through the submission made by the learned counsel for the parties and perused the records. 8. The learned counsel for the appellant-complainant has raised many issues. As per Section 138 of Negotiable Instrument Act, 1881(herein after called as 'the Act'), cheque has to be issued by the person who is holding an account and it must be for discharge of any debt or part of the debt or liability. The said cheque has to be presented to the bank within a period of six months from the date on which it is drawn or within a period of its validity, whichever is earlier. Thereafter, the holder of the cheque has to make a demand for payment of the said amount by giving a notice in writing to the drawer of the cheque within thirty days from the receipt of the cheque and if the drawer of the cheque fails to make payment of cheque amount within fifteen days after the receipt of said notice. Then, there is a cause of action to file the complaint. As could be seen from the records, Ex.P1 is a cheque said to have been issued by the accused in favour of the complainant. The said cheque if it is perused, there is a correction of year by way of dropping ink on the date and subsequently, initial is also found by the side of the said dot of ink. The figure 5 of the year has not been properly written. If it is at the time of issuance of the cheque, then under such circumstances, complainant definitely got it corrected and written proper figure what exactly the year on which the cheque has been issued. As could be seen from the evidence of the complainant, when she has deposited, she has not aware of the said fact and the said cheque given by the accused has been got as it is without there being any knowledge, when Ex.P1 was in her possession and if there is a dropping of the ink on the date and an initial is also there, then under such circumstances, the complainant has to explain why that drop of ink has fallen and the initial has been obtained. It stands to reason that if the complainant is aware of the fact that in case of some alteration, signature has to be obtained. It stands to reason that if the complainant is aware of the fact that in case of some alteration, signature has to be obtained. Then definitely, the year should have been clearly written in this behalf for the reasons best known to the complainant that the said cheque does not contain a proper year of the date. Under such circumstances, the said cheque is not considered to be a valid cheque within the definition of the said act. Until and unless, the said cheque or Negotiable Instrument if it has not a valid then under such circumstances, all the proceedings which have been initiated further, they will not stand to any reason. 9. Be that as it may. Even, as could be seen from the Ex.P1, it is nothing but a mutilated cheque. If any alteration is made in a material part of a negotiable instrument, after its execution without the consent of any of the party to the proceedings, then, under such circumstances, the said cheque is construed to be not a negotiable instrument within the meaning of the act. If any corrections have been made with the consent of the parties and the signature has been obtained in this behalf, then the explanation has to be by the complainant. But, as could be seen from the records, there is no explanation in this behalf. Under the said facts and circumstances, it goes to show that the said alteration has been made without the consent of the parties and the said deed itself construed to be void. When the cheque itself is not having any validity, then, under such circumstances, issuance of the legal notice and return of the cheque has 'insufficient funds' and non-payment of the cheque amount does not give any right to file the complaint. 10. Though, during the course of arguments, the learned counsel for the complainant-appellant submitted that the bank which has given endorsement about the cheque, it is not for mutilation but it is for insufficiency of funds. Though, the said endorsement has been given by the bank as 'insufficient fund', but patently on Ex.P1 drop of ink is there at the year column and subsequently, a signature is also thereon, the date has not been put properly. Looking from any angle, the said explanation given by the complainant-appellant is not going to validate the cheque Ex.P1. Though, the said endorsement has been given by the bank as 'insufficient fund', but patently on Ex.P1 drop of ink is there at the year column and subsequently, a signature is also thereon, the date has not been put properly. Looking from any angle, the said explanation given by the complainant-appellant is not going to validate the cheque Ex.P1. Though, the signature on the cheque Ex.P1 is admitted by the accused, no presumption can be drawn under Section 138 of the Act. The presumption can be drawn only if a valid and legal negotiable instrument is in existence and if signature is admitted. When the said instrument itself is not valid then, under such circumstances all other contentions which have been raised by the learned counsel for the appellant does not hold any water. The appeal is devoid of merits and is requires to be dismissed and accordingly, it is dismissed.