Firoj Khan vs Mohd.Tayyab & Anr.
2011 Latest Caselaw 4666 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CRL.L.P. 190/2011


                                 Date of Decision : 21.09.2011

     FIROJ KHAN                                   ..... Petitioner
                       Through   Mr. G. S. Aneja, Advocate

                       versus


     MOHD.TAYYAB & ANR.                  ..... Respondents
                Through          Mr. Sunil Sharma, APP

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.   Whether Reporters of local papers may be
     allowed to see the judgment?                      NO
2.   To be referred to the Reporter or not ?           NO
3.   Whether the judgment should be reported
     in the Digest ?                                   NO

V.K. SHALI, J.

1. This is a leave to appeal filed by the appellant against

the judgment dated 18.2.2011 passed by the learned

Metropolitan Magistrate acquitting the respondents

herein for an offence under Section 138 Negotiable

Instruments Act.

2. Briefly stated, the case set up by the

appellant/complainant is that the respondents had

CRL.L.P. No.190/2011 1|6 taken a friendly loan of Rs.1,10,000/- from the

appellant/complainant in the first week of August,

2006 for his business purposes and in order to repay

the said loan he had issued a cheque bearing

no.332936 dated 10.11.2006 for an amount of

Rs.1,10,000/- drawn on Punjab & Sind Bank, Chawri

Bazar, Delhi in favour of the appellant/complainant.

On presentation of the said cheque to the banker of

the respondents/accused, the same was dishonoured

on 24.03.2007 on the ground of insufficiency of funds.

A demand notice dated 01.04.2007 was issued by

registered AD as well as UPC to the respondents and

since, they failed to make a payment within a period of

15 days from the date of issuance of the notice, the

complaint was filed by the appellant/complainant.

3. The respondent took the stand that no transaction

worth lacs had taken place between the

appellant/complainant and respondent. It was stated

that the cheque which issued was only for a sum of

Rs.10,000/- on account of chit fund which was being

CRL.L.P. No.190/2011 2|6 run by the appellant/complainant. In this regard, the

respondents/accused contended that the cheque no.

332921 dated 15.04.2005, cheque no. 332922 dated

16.05.2005, cheque no. 332923 dated 14.06.2005 and

cheque no. 332931 dated 16.09.2005 were all for sum

of Rs.10,000/- and which would clearly shows that

even the cheque no.332936 dated 10.11.2006, which

is the cheque in question was also issued for a sum of

Rs.10,000/- in which figure „1‟ on the cheque was

inserted by the petitioner/complainant.

4. The learned Magistrate recorded the evidence of the

parties, statement of accused and defence witnesses

and thereafter, discussed the case law and came to

the conclusion that the presumption of dishonour of

the cheque in question having been issued for a

discharge of debt or existing liability was dislodged by

the respondent/accused by creating hole in the case of

the appellant/complainant by showing that cheques

preceding and succeeding and issued around the time

in favour of the appellant/complainant were only for a

CRL.L.P. No.190/2011 3|6 sum of Rs.10,000/- and not in lacs of rupees.

5. Further, the learned Magistrate had also taken the

note of the fact that „comma‟ in the cheque had been

put at an unusal place of the amount. It is pertinent

to mention, if a cheque is drawn for a sum of

Rs.10,000/- than the „comma‟ would be present after

three zeros and if a cheque is drawn for a sum of

Rs.1,00,000/- than „two commas‟ be put, one after

three zeros and one after „two zeros‟. In the instant

case the cheque in question is stated to be for a sum

of Rs.1,10,000/- and the „comma‟ which is put, is only

after the three zeros meaning thereby, it refers

110,000 which is very unnatural way of writing the

amount in figures.

6. The learned Magistrate has dealt with this aspect of

the matter in para 9.1 which is reproduced as under:-

"No doubt that the cited judgments say that putting the amount and name on the cheque cannot be treated as material alteration under Section 87 NI Act. However, the judgment cited by the complainant are distinguishable on the facts of the present case. What the accused is alleging is not

CRL.L.P. No.190/2011 4|6 that amount was put on the cheque, but a figure „1‟ was inserted before the figure Rs.10,000/-„. Such insertion, in my considered view can be treated as material alteration. In normal practice, figures in amount are written as 10,000/- & 1,00,000/-. In the instant cheque, figure is mentioned as 110,000/-. (We may probably believe that the person who wrote the figure on the cheque was apparently aware of this practice). If figure Rs.110,000/- was to be written, it ought to have been (not definitely but probably as per the standard of a reasonable man) like Rs.1,10,000/-‟. The same is not the case here."

7. I am in total agreement that the observations of the

learned Magistrate that the manner in which the

„commas‟ were put on the amount of Rs.1,10,000/- in

the cheque in question was creating a reasonable

suspicion that the figure one has been added later by

the appellant/complainant. It was for the appellant to

have produced evidence to the contrary in this regard

which he has failed to do. I, therefore, do not feel

that there is any ground to grant the leave to appeal

to the appellant.

8. I find no infirmity in the impugned judgment dated

18.2.2011 passed by the learned Metropolitan

CRL.L.P. No.190/2011 5|6 Magistrate nor I am persuaded by any of the

submissions made by learned counsel for the

petitioner and therefore, it is not a fit case for grant

of leave to appeal.

9. In view of the above, the leave to appeal sought by

the petitioner is without any merit and the same is

dismissed.

                                                V.K. SHALI,J
SEPTEMBER        21, 2011
'b'




CRL.L.P. No.190/2011                                     6|6