Gopinath P., J.:— This appeal has been filed by the complainant in a prosecution under Section 138 of the Negotiable Instruments Act challenging the acquittal of the 1 respondent/accused. The appellant/complainant filed C.C. No. 502/2001 before the Judicial First Class Magistrate Court-II, Hosdurg alleging that a cheque dated 28-12-2000 issued by the 1 respondent/accused in discharge of a debt had been returned unpaid with the endorsement ‘account closed’. After complying the with statutory formalities the complaint was filed alleging that the 1 respondent/accused had committed an offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate found that the presumption under Section 139 of the Negotiable Instruments Act would act in favour of the appellant/complainant and that the case of the 1 respondent/accused that the cheque was given as a security and that there was manipulation in the date of the cheque could not be believed as there was no such statement in Ext.P6 reply notice. The case of the 1 respondent/accused that the cheque has been issued as security was also disbelieved in the absence of any evidence to that effect. Accordingly the learned Magistrate convicted 1 respondent/accused under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for 6 months and pay an amount of Rs. 1,00,000/- to the appellant/complainant, as compensation. In default of payment of fine, the 1 respondent/accused was sentenced to undergo simple imprisonment for 3 months.
2. The 1 respondent/accused filed Crl. Appeal No. 129/2004 before the Additional Sessions Judge (adhoc)-III, Kasaragod which was allowed through judgment dated 04-10-2005. The appeal of the 1 respondent/accused was allowed principally on the ground that there is a tampering with Ext.P1 cheque. The finding of the appellate court on this point is as follows.-
“According to the learned Magistrate there is no palpable difference in the ink and in the number as contended by the defence counsel. This approach of the learned Magistrate is not at all proper. The Ext.P1 cheque clearly shows that there is tampering in the date of the cheque. 28.01.2000 is clearly altered as 28.12.2000. The month ‘1’ is altered as ‘12’ by adding ‘2’. The manipulation and alteration can be realized by even an ordinary man. There are three ‘2’ in 28.12.2000. After the manipulation, the ‘2’ in 28 and ‘2’ in 2000 are entirely different from the other ‘2’ in ‘12’. The tale of ‘2’ in ‘12’ is to the downward direction. Whereas the tail of the ‘2’ in 28 and ‘2’ in 2000, are not to the downward direction. A mere glance with a naked eye it is very well clear that the ‘2’ in ‘12’ is entirely different from ‘2’ in 28 and 2000. The accused has got a case of tampering in the Ext.P1 cheque from the very beginning of getting Ext.P3 lawyer notice. Whereas the complainant is not having a case that the accused has given cheque with this type of alteration. So, a contention of the accused that the accused has materially altered the date in the cheque has to be taken into consideration. It is true the accused has not substantiated the case by adducing oral evidence or documentary evidence to prove the relationship between Ahmed Kunhi and his business. But considering the available evidence in this case, the accused has got a strong case that the complainant has manipulated the Ext.P1 cheque and the suggestion made by the accused in the cross-examination of PW1 are all corroborating factors to the material alteration of the Ext.P1 cheque as found by the court. I am of the view that the defence taken by the accused is true and the complainant has not come with the straight mind. He has come before the court with Ext.P1 cheque after manipulation in the date. If the original date of the Ext.P1 cheque is 28.01.2020, the complainant cannot file this complaint as provided under the provisions of N.I. Act and only to make the Ext.P1 cheque the accused has altered the date of the cheque. Hence it has to be said that the accused is not liable for the offence alleged against him. In other words, the accused is not liable u/s 138 of the N.I. Act.
3. On the basis of the above finding the appellate court allowed the appeal and acquitted the 1 respondent/accused. This appeal has been filed challenging the appellate court judgment after obtaining leave of this court.
4. The learned counsel for the appellant would vehementally contend that the appellate court completely misguided itself in law in accepting the contention of the 1 respondent/accused that there is a material alteration in Ext.P1 cheque. According to him the earliest opportunity where the 1 respondent/accused could have to take such a contention is in the reply to the statutory notice issued by the appellant/complainant. He submits that in the reply notice the 1 respondent/accused has no case that there is any material alteration in the cheque. It is therefore contended that the issue of alteration is a clear after thought and the appellate court should not have accepted that contention especially when there was no scientific evidence to prove that there was any material alteration to the cheque. He also adds that even when the 1 respondent/accused was questioned under Section 313 Cr.P.C, he had no case that there was any material alteration in Ext.P1 cheque. The learned counsel for the appellant would also state that the statutory presumption under Section 139 of the Negotiable Instruments Act ought to have been applied to find that the appellant/complainant had succeeded in proving that the 1 respondent/accused had committed the offence under Section 138 of the Negotiable Instruments Act.
5. I have considered the contentions raised by the learned counsel for the appellant/complainant. I have also perused Ext.P1 cheque to examine whether there was any reason for the appellate court to have reverse the finding of the learned Magistrate on the ground that there appears to a material alteration to Ext.P1 cheque. Considering the nature of the finding in the appellate court judgment it will be useful to refer to S.73 of the Indian Evidence Act. The provisions of Section 73 of the Indian Evidence Act, 1872 reads as follows.-
“73. Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. 1[This section applies also, with any necessary modifications, to finger-impressions.]”
6. On a perusal of Ext.P1 cheque it appears to me that the name of the payee (appellant/complainant) is itself written in an ink different from the ink used to write the words ‘one lakh only and the amount 1,00,000/- and the signature of the 1 respondent/accused. That apart the ink used for writing the date as 28.01-2000 appears to be different from the ink used in writing the numeral 2 after 1 on the cheque (changing the month from January to December). That apart as found by the learned Judge in Crl. Appeal No. 129/2004, the numeral 2 after the numeral 1 indicating the month in which the cheque was issued is clearly written in a manner different to the numeral 2 used while writing the date 28 and the year as 2000. A comparison of the disputed writing with the admitted writing is an exercise permitted under Section 73 of the Indian Evidence Act. It is not necessary that every time there is a dispute regarding some entry in a document it should always be referred for analysis by a handwriting expert. If the court on a perusal of the document comes to the conclusion that there is a clear mismatch between the admitted writing and the disputed writing it is always open to the court to reach a conclusion that the disputed writing is not of the person who is purported to have written the same. Therefore I am of the opinion that the appellate court Judge in Crl. Appeal No. 129/2004 has adopted the correct approach and has rightly found that there is a alteration in the cheque. Without the material alteration the date on Ext.P1 cheque would be 28-1-2000 in which case the cheque was presented out of time based on admitted facts. The question of applying the presumption under Section 139 will arise only after the court has, in a case like this, come to the conclusion that the cheque in question was indeed issued by the accused, on the date, month and year in which it is purportedly executed.
7. In that view of the matter there is no merit in this appeal and it is accordingly dismissed.
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