SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd. Page 1 Tuesday, June 20, 2023 Printed For: Navya Jain, University of Petroleum & Energy Studies SCC Online Web Edition: http://www.scconline.com © 2023 EBC Publishing Pvt. Ltd., Lucknow. ----------------------------------------------------------------------------------------------------------------------------------------------------------- Crl. O.P. No. 29340 of 2014 Golden Enterprises v. Ashok Jain 2014 SCC OnLine Mad 10302 (BEFORE R.S. RAMANATHAN, J.) M/s. Golden Enterprises rep. by its Finance Manager and Power of Attorney Holder V.R. Bharathy No. 10, General Muthiah Mudali Street, Sowcarpet, Chennai 600 079 .…. Petitioner v. Ashok Jain Proprietor M/s. Sri. Ramdev Enterprises, Flat No. 201, Vimalachal Apartments, Poonamallee High Road, Vepery, Chennai 600 007 .…. Respondent For Petitioner: Mr. K. Rajasekaran Crl. O.P. No. 29340 of 2014 In Crl.A. SR. No. 3750 of 2014 Decided on November 11, 2014 ORDER The petitioner is the complainant in C.C. No. 2437 of 2010 on the file of the VIII Metropolitan Magistrate, George Town, Chennai. He filed a private complaint against the respondent under Section 138 of the Negotiable Instruments Act and that complaint was dismissed and the respondent was acquitted and aggrieved by the same, the petitioner filed this application seeking leave of this Court to file an appeal against the order of acquittal dated 13.02.2013 in C.C. No. 2437 of 2010. 2. The case of the petitioner/complainant is that on 14.08.2009, the respondent/accused borrowed a sum of Rs. 7,00,000/- from the petitioner for his business needs and agreed to repay the said sum within a month. The respondent/accused also issued a cheque bearing no. 064519 originally dated 01.10.2008 drawn on Andhra Bank, Purasawalkam Branch, Chennai-84 in favour of the petitioner towards the loan amount and subsequently, the date was altered by the respondent to 17.09.2009. The cheque was presented for collection and it was returned unpaid with the endorsement ‘Account closed’ on 26.02.2010. Thereafter, the petitioner sent a legal notice to the respondent on 04.03.2010. Though the same was received by the respondent, he did not send any reply nor repaid the amount and therefore the petitioner filed a complaint to punish the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act (in short ‘Act’). 3. During trial, on the side of the petitioner, one V.R. Bharathy the Finance Manager of the petitioner Company was examined as P.W.1 and one D. Panchatcharam, Handwriting Expert was examined as P.W.2 and Exs.P1 to P10 were marked. On the side of the respondent, no witness was examined and no document was marked. The Trial Court held that the petitioner did not prove the borrowal by the accused and the Statement of Accounts vide Ex.P9 was not altered by an Income Tax Officer and Ex.P2Cash Book Ledger Entry cannot also be believed, as the same was not having the proof of submission to Income Tax and as per the evidence of P.W.2, the cheque was SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd. Page 2 Tuesday, June 20, 2023 Printed For: Navya Jain, University of Petroleum & Energy Studies SCC Online Web Edition: http://www.scconline.com © 2023 EBC Publishing Pvt. Ltd., Lucknow. ----------------------------------------------------------------------------------------------------------------------------------------------------------- subjected to material alteration, as the date was changed from 07.08.2008 to 07.10.2008. Therefore, as alleged by the petitioner, the cheque could have been given for discharge of Rs. 7,00,000/- alleged to have been borrowed by the respondent on 14.08.2009. The Trial Court acquitted the respondent and dismissed the complaint. Hence, this petition is filed by the petitioner seeking leave to prosecute the above appeal filed against the order of acquittal. 4. It is submitted by the learned counsel for the petitioner that the petitioner has filed additional document namely, Certificate by the Chartered Accountant to prove that the entries in Ex.P2 and Ex.P9 are genuine and the petitioner is also prepared to submit the Income Tax Returns from the Income Tax Office to prove the passing of consideration between the petitioner and the respondent regarding the loan availed by the respondent on 14.08.2009 and therefore would submit that one more opportunity may be given to the petitioner to prove the passing of consideration, by granting leave. He further submitted that when P.W.1 was examined, no suggestion was put to her regarding the alteration of date in the cheque. Having regard to the fact that the signature found in the cheque was admitted as that of the respondent, the Trial Court ought to have drawn presumption under Sections 118 and 139 of the Act and convicted the respondent. Therefore, he would pray that leave may be granted to the petitioner to prosecute the appeal. 5. I am unable to accept the contention of the learned counsel for the petitioner. It is the specific case of the petitioner that on 14.08.2009, the respondent/accused borrowed a sum of Rs. 7,00,000/- and issued a cheque dated 17.09.2009, which was originally dated 01.10.2008. Neither in the complaint nor in the proof affidavit, it has been specifically stated whether the cheque was given by the accused on the date of borrowal or subsequently. Even assuming that the cheque was given subsequent to 14.08.2009, having regard to the evidence of P.W.2, handwriting expert, the Trial Court has rightly held that the case has not been proved against the respondent. It is seen from the evidence of P.W.2 that the date has been altered from 07.08.2008 to 07.10.2008. 6. It is further seen from the evidence of P.W.2 that the cheque was bearing the original date as 07.08.2008 and later on, it was altered into 07.10.2008 and that alteration was endorsed by the respondent. The date 07.10.2008 was completely struck out and a new date 17.09.2009 was written in a different handwriting in different place in the cheque. There is no explanation by the complainant for altering the date of the cheque from 07.08.2008 to 07.10.2008. As a matter of fact, it is his specific case that the cheque was originally dated 01.10.2008 and altered by the respondent to 17.09.2009. So far as the alteration of date from 07.08.2008 to 07.10.2008, the same was accepted by the respondent and the respondent also counter-signed beneath the correction from 07.08.2008 to 07.10.2008. The correction or alteration from 07.08.2008 to 07.10.2008 was in the same ink and done by the same person and that was also opined by P.W.2. However, P.W.2 categorically deposed that the date 17.09.2009 was written in a different handwriting and it is found in the different place. Bearing this in mind, we will have to see whether the cheque is a valid one. 7. Under Section 87 of the Negotiable Instruments Act, any material alteration in a negotiable instrument renders the same void as against anyone who is a party therein at the time of making such alteration and it does not concern thereto, unless it was made in order to carry out the common intention of the original parties. 8. In this case, as stated above, there is an alteration in the date of the cheque and in SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd. Page 3 Tuesday, June 20, 2023 Printed For: Navya Jain, University of Petroleum & Energy Studies SCC Online Web Edition: http://www.scconline.com © 2023 EBC Publishing Pvt. Ltd., Lucknow. ----------------------------------------------------------------------------------------------------------------------------------------------------------- the judgment reported in AIR 1957 Madras 715 (Rangaswami Reddi v. K. Doraiswami Reddi), it is held that under Section 87 of the Negotiable Instrument Act, when a negotiable instrument has been altered by the payee, the same cannot be endorsed by him. Section 87 has nothing to do with the liability of the executant of the instrument. It only says that the endorsee has to suffer the loss occasioned by his own fraud. In the judgment reported in 2005 Crl. L.J. 576 (Amaravathi Chits Investments v. T.M. Vaidyanathan), which was also relied on by the learned Trial Judge, when there is a material alteration in the date of the cheque for the purpose of making it a legally valid one, it amounts to material alteration. 9. As stated supra, the case of the prosecution is that in respect of the transaction that took place on 14.08.2009, the respondent issued a cheque dated 17.09.2009. As found by P.W.2-handwriting expert, the cheque was originally dated 07.08.2008 and altered into 07.10.2008 and that alteration was endorsed by the respondent and 07.10.2008 was also struck off and a new date 17.09.2009 was written and the writing of 17.09.2009 was in a different handwriting. If really, the transaction had taken place on 14.08.2009, the respondent would not have given the cheque dated 17.09.2009 after altering the date from 07.08.2008 to 07.10.2008 and thereafter struck off both the dates and wrote a different date. Further, it is also contrary to the case of the petitioner that the cheque was originally dated 01.10.2008 and altered into 17.09.2009 by the respondent. 10. It is held in Govindaswami v. Kuppuswami (ILR 12 Madras 239) that the date of the instrument is not merely a description of it, but indicates the time when the contract came into existence. In most cases, the date is very material in calculating the date of performance of the contract and more often fixes the period of limitation within which the plaintiff will have to sue. Therefore, the alteration of date in a negotiable instrument amounts to material alteration and having regard to the facts of this case, by reason of the alteration, the complainant attempts to make a stale cheque into a valid cheque and the cheque has lost its validity by reason of the material alteration. 11. Therefore, I hold that the cheque is not valid and that was properly appreciated by the learned Trial Court. I do not find any infirmity with the order of the learned Trial Judge and accordingly, this petition seeking leave is rejected. The Criminal Original Petition stands dismissed. ——— Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of this text must be verified from the original source.