M.B. Rajasekhar v. Savithramma

A.S. Pachhapure, J. -- The appellant has challenged the order acquitting the respondent for the charge under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called s 'the Act' for short) on a trial held by the Additional Chief Metropolitan Magistrate, Bangalore.

2. The facts relevant for the purpose of this appeal are as under:

The appellant herein submitted a com plaint before the Trial Court under Sec tion 200 of the Criminal Procedure Code, 1973 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 ap pellant (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 postdated cheque for a sum of Rs.6,00,000 dated 13.4.2004 drawn on Sri Anjaneya Co-operative Bank Limited and thereafter, assured the com plainant to clear the dues within the stipu lated 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 re spondent, 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 ac cused is said to have given a false reply. In these circumstances, the appellant ap proached the Trial Court with a complaint on these facts.

During the trial, the appellant was examined as PW1 and his wife as PW2 and got marked the documents Exs. P1 to P11, The statement of the accused was recorded under Section 313 of Cr. P.C. The accused examined herself as DW1 and two witnesses DWs 2 and 3 and in the evidence, got marked the documents Exs, D1 to D14. 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 consid eration 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 respon dent/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. P1 and in the circumstances, the Trial Court committed an error in granting an order of acquittal. So also, it is his conten tion that the Trial Court has not taken into con sideration the other aspects except with refer ence to the alteration of the cheque and there fore, 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. P2. It bears the date as 13.4.2004. 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. PW1 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 sig nature of the accused. This version in the cross-examination of PW1 clearly indicates his knowledge about the alteration of the year in the cheque.

6. The learned Counsel relies upon the deci sion of the High Court of Madras in Seth Dhanoomal Parsaram v P. Kuppuraj, AIR 1977 Mad. 274, wherein the High Court has referred to the principle of material alteration and has held as under:

"The principle underlying material alter ation is settled. It presupposes 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 con scious covert or overt act on the part of the creditor resulting in a material alter ation of the instrument. By establishing that a negotiable instrument has been al tered in a superfluous sense will not suf fice to prevent the creditor from institut ing an action on such an altered instru ment. The debtor complaining of material alteration should not rest content by es tablishing that there was a formal alter ation 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 discov ered should shake the very foundation of the instrument"

7. In view of the decision referred to supra, the question that now raises 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 as pect of the matter is considered, the change of the date of the cheque amounts to a maternal 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. P2 is invalid and cannot be relied upon.

9. The learned Counsel relied upon the deci sion of the Apex Court in Veera Exports v T. Kalavathy, ILR 2002 Kar. 1825 (SC): AIR 2002 SC 38: (2002)1 SCC 97: 2002 Cri. L.J. 203 (SC): 2002 SCC (Cri.) 85, 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/ac cused has altered the date and if it was so, there could have been the signature of the respon dent 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 finan cial 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 postdated cheque dated 13.4.2004 for Rs. 6,00,000. It is relevant to note that the dated 13.4.2004 is earlier to the month of September 2004. Therefore, this cheque cannot be called as a postdated cheque and the allegations in the complaint are contrary to the statement that it is a postdated cheque. Furthermore, in the complaint itself, in para 3 it is stated, thereafter, the accused for the security of the said amount issued a postdated cheque bearing No.002607 for a sum of Rs. 6,00,000 dated 13.4.2004 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 count, 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. She knows the wife of the complainant through one Smt. Krishnaveni and the wife of the complainant offered her to give six months a maid servant's job in America in the house of her daughter on a monthly sal ary of Rs. 30,000 and stated that there is neces sity to obtain the passport and that in the guise of getting the discharge of proof of financial sta bility, 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. P2, the contents of the cheque are in differ ent handwriting and the perusal of the signa ture of the accused on this cheque does not re veal that she has filled 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 filled 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 postdated 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 ap pellant. The evidence discloses that the accused worked as a maidservant in the house of the complainant as admitted by the complainant himself on a monthly salary of Rs. 1,500. So, when the respondent/accused was a poor, giv ing an amount of Rs. 6,00,000 to such a person for the domestic needs appears to be improb able and unacceptable. After the receipt of the notice at Ex. P5, 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 put forth appears to be more prob able.

13. The learned Counsel for the appellant has placed reliance on the decision of the Apex Court in Bharat Barrel and Drum Manufactur ing Company v. Amin Chand Payrelal, AIR 1999 SC 1088: (1999)3 SCC 35, wherein the Apex Court took into consideration the bur den of proof and presumption as to consider ation 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 consider ation, the onus cannot be shifted on the plain tiff 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 in Adapa Bhogi Raju v. S. G. Ramayya and An other, 1994 Cri. L.J. 411 (AP), 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 transac tions as alleged by the complainant. An independent assessment of the evidence adduced by the complainant, both oral and documentary, leads me to an irresist ible conclusion that the cheques were is sued by the accused in connection with the film distribution business as 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 in S. Parameshwarappa and Another v. Choodappa, 2007(2) Kar. L.J. 19: 2006(4) KCCR 2685, 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 pre sumption 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 is observed that presumption that arises is rebuttable and in case, if the accused raised a probable defence, it is sufficient to re but the presumption raised under Section 139 of the Act. As already held, the defence put forth by the accused is probable and it is substantiated on the basis of the material referred to su pra 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, PW1 states that it was for the construction of the house by the accused. In the complaint, it is specifically al leged that the cash loan of Rs. 6,00,000 was given to the accused in the month of Septem ber 2004. In the Chief examination, PW2 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 evi dence of PW1, it is stated that it is one time payment, PW2 states in a different way, having given the loan of Rs.6,00,000 to the respondent under several installments. So, the evidence of PW2 goes contrary to the allegations in the com plaint and the evidence of PW1. So, the perusal of the evidence of DWs 1 to 3, in the context of the defence taken in the notice Ex. P10 and for the reasons stated above, I am of the opinion that the appellant/complainant has failed to es tablish 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. 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 can not be a ground to remit the matter to 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 bur den of getting a postdated cheque as a security for the repayment of the loan and even if a pre sumption arises, the material placed on record by the respondent is sufficient to rebut the pre sumption 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.

Appeal dismissed.