Bombay High Court
Ruksana W/O. Afsar Sayyad vs Kamalbai W/O. Gopinath Rathod on 9 January, 2023
Bench: S. G. Mehare
1 66-CrRn-250-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.250 OF 2018
WITH APPLN/1014/2019 IN REVN/250/2018
Ruksana w/o Afsar Sayyad,
Age 65 years, Occu. Household,
R/o. Omerga, Taluka Omerga,
District Osmanabad .. Applicant
(Original Accused)
Versus
Kamalbai w/o Gopinath Rathod,
Age 43 years, Occu. Household,
R/o. Omerga, Taluka Omerga,
District Osmanabad .. Respondent
(Original complainant)
Mr. A. A. Khan, Advocate for Applicant;
Mr. Yogeshwar L. Bidve, Advocate for Respondent
CORAM : S. G. MEHARE, J.
DATE : 09-01-2023
ORAL JUDGMENT :-
1. Heard the learned counsels for the respective parties.
2. The learned Judicial Magistrate First Class, Omerga,
convicted the present applicant for the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881, and
sentenced him to suffer simple imprisonment for 15 days by order
dated 21.02.2013 passed in S.C.C. No.968 of 2006.
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3. The applicant had impugned the said order before the
learned Adhoc District Judge-1, Omerga, in Criminal Appeal No.4 of
2013. By the order dated 16.07.2018, the learned Adhoc District
Judge upheld the judgment and order of the learned trial Court;
however, he reduced the imprisonment till the rising of the Court.
4. The learned counsel for the applicant has vehemently
argued that both Courts did not consider that the change in the
year on the cheque in dispute was a material alteration, though
supported by the handwriting expert's opinion. Both the Courts
have discarded the defence observing that it was created
evidence. The case of hand loan has also been discarded.
5. The learned counsel for the respondent/complainant would
argue that though the handwriting expert was appointed, the
applicant never disputed the signature over the date column of the
cheque. She had acknowledged the correction made in the year
mentioned on the cheque in dispute. Therefore, it is not a material
alteration to lead to the negotiable instrument void.
6. The learned counsel for the applicant has relied on the
following cases;
(i) Loonkaran Sethia etc. Versus Mr. Ivan E. John and
others etc., AIR 1977 Supreme Court 336; and
(ii) P. Jayamadha Versus L. Kumar, 2017(3) MLJ
(Criminal) 148.
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7. A short question for consideration is whether the alteration
in the year of the cheque is a material alteration that renders the
negotiable instrument void against the applicant/accused.
8. No doubt, changing the year of the cheque is a material
alteration to bring the cheque in limitation for encashment. In the
case of Loonkaran Sethia (supra), the Hon'ble Supreme Court
laid down the law that the effect of making such an alteration
without the consent of the party bound is exactly the same as that
of cancelling the deed.
9. In the case of P. Jayamadha (supra) discussing Section 87
of the Negotiable Instruments Act, the Court has held that if a
person who consents to alteration, as well as an individual who
made alterations, are dis-entitled to complain against such
alteration, i.e. if the drawer of cheque himself altered cheque for
validating or re-validating same instrument, he cannot take
advantage of it later by saying that cheque became void as there
is material alteration thereto. Even if the 'Holder of the Cheque' or
'Payee' made the alteration with the consent of the drawer
thereof, such alteration also cannot be employed as a ground to
resist the right of the Payee or holder thereof. It is always a
question of fact whether alteration was made by drawer himself,
whether it was made with the consent of the drawer, requires
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evidence to establish aforesaid issue/question whenever it is
disputed.
10. Section 87 of the Negotiable Instruments Act says that a
person who consents to the alteration and the individual who
made the alteration are disentitled to the complaint against such
alteration. To make any material alteration in the negotiable
instrument, consent of the drawer is a sine qua non. In simple
words, if any alterations have been made without the consent of
the party to the negotiable instrument, it becomes void against
anyone who is the party to such a negotiable instrument at the
time of making such alteration.
11. The law is well settled that once a cheque is issued, it is to
presume that the legally enforceable debt exists and is
enforceable. Where alterations have been made in the cheque and
drawer signs over it, that would indicate that the said alterations
have been made with the consent of the drawer, then such
alteration would not disentitle the drawee to negotiate the
instrument.
12. Here in the case, the trial Court has specifically observed
that though the issue was referred to the handwriting expert, there
was a signature of the accused over the date column on the
cheque issued. The accused never denied his signature above the
date column of the cheque. Therefore, the trial Court has correctly
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observed that the accused acknowledged the correction of the
date i.e. year of the cheque. Further, the learned Judicial
Magistrate has correctly given the reasons to disbelieve the
alteration put forth by the complainant. Therefore, accepting that
the alterations disentitle the respondent from negotiating the
instrument would be inappropriate.
13. The reasons assigned for the conclusion by the learned
Magistrate are free from errors and correctly appreciated the
evidence. The impugned order does not warrant interference.
Hence, the order:-
ORDER
(i) The petition stands dismissed.
(ii) R & P be returned to the concerned trial Court.
(iii) Rule stands discharged.
(iv) In view of the dismissal of the revision application, the
pending criminal application stands disposed of.
( S. G. MEHARE )
JUDGE
rrd
