D Chandraiah vs K Gaddigeppa
2022 Latest Caselaw 9708 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF JUNE, 2022

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

 CRIMINAL REVISION PETITION No.906 OF 2013

BETWEEN:

D. Chandraiah,
S/o. Revanasiddaiah,
Aged about 44 years,
R/o. # 855/856,
2nd floor, 1st Stage,
Shivakumarswamy
Layout, Davanagere.
                                                    ..Petitioner
(By Sri. Rajashekhar K., Advocate)

AND:

K. Gaddigeppa
S/o. Late Yellappa,
Aged about 48 years,
R/o. KEB Colony,
H.No.MUCEB 26,
Behind Community Hall,
Near Stadium,
Davanagere 577 004.
                                                   .. Respondent
(By Sri. K.G. Shantharaj, Advocate)

                                   ****
      This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
praying to call for the records in C.C.No.2550/2009 on the file of
the II Additional Senior Civil Judge and JMFC, Davanagere; set
aside the judgment of conviction dated 05-10-2013 passed in
                                                   Crl.R.P.No.906/2013
                                  2


Criminal Appeal No.6/2013 by the Court of II Additional District
and Sessions Judge, Davanagere and also set aside the
judgment    of    conviction   dated    09-01-2013      passed    in
C.C.No.2550/2009 by the Court of III Additional Senior Civil
Judge and JMFC, Davanagere by allowing this appeal and thereby
acquit the petitioner/accused; and grant such other relief/s as
this Court deems to be fit grant under the facts and
circumstances of the case, in the interest of justice and equity.

      This Criminal Revision Petition coming on for Final Hearing,
through physical hearing/video conferencing hearing, this day,
the Court made the following:

                            ORDER

The present petitioner as the accused was tried by the

Court of the learned III Additional Senior Civil Judge and

Judicial Magistrate First Class, Davanagere, at:

Davanagere, (hereinafter for brevity referred to as "the Trial

Court"), in Criminal Case No.2550/2009 (Old

C.C.No.2214/2008), for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881

(hereinafter for brevity referred to as "the N.I. Act") and

was convicted for the said offence by its judgment of

conviction and order on sentence dated 09-01-2013.

Aggrieved by the same, the accused preferred a

Criminal Appeal, in the Court of the learned II Additional

District and Sessions Judge at Davanagere, (hereinafter for Crl.R.P.No.906/2013

brevity referred to as "the Sessions Judge's Court") in

Criminal Appeal No.6/2013.

The appeal was contested by the respondent who was

the complainant in the Trial Court. The Sessions Judge's

Court in its judgment dated 05-10-2013 dismissed the

appeal, confirming the judgment of conviction and order on

sentence passed by the Trial Court dated 09-01-2013 in

C.C.No.2550/2009 (Old C.C.No.2214/2008).

Aggrieved by the said order, the accused has preferred

this revision petition.

2. The summary of the case of the complainant

(respondent) in the Trial Court is that, the accused was

known to him since twenty years, as such, at the request of

the accused, on 12-04-2008, he lent him a sum of

`15,000/- in cash. The accused had promised to repay the

said loan amount within two months. However, at the

demand made by the complainant for the repayment of

money after the said two months, the accused gave him the

cheque bearing No.096528 dated 13-07-2008, for a sum of Crl.R.P.No.906/2013

`15,000/-, drawn on the Corporation Bank, Mandipet,

Davangere, in favour of the complainant and the said

cheque when presented for realisation returned with the

banker's endorsement "exceeds arrangements". Thereafter,

the complainant got issued a legal notice to the accused,

demanding the payment of the cheque amount. The

accused neither replied to the legal notice nor paid the

cheque amount, which constrained the complainant to

institute a criminal case against the accused for the offence

punishable under Section 138 and 142 of the N.I. Act.

3. The accused appeared in the Trial Court and

contested the matter through his counsel. He pleaded not

guilty and claimed to be tried, as such, the Trial Court

proceeded to record the evidence. To prove his case, the

complainant got himself examined as PW-1 and got marked

documents from Exs.P-1 to P-6(d) and closed his side. The

accused got himself examined as DW-1 and got marked

documents from Exs.D-1 to D-4, in his support.

Crl.R.P.No.906/2013

4. The Trial Court after recording the evidence led

before it and hearing both side, by its impugned judgment

of conviction and order on sentence dated 09-01-2013

convicted the accused for the offence punishable under

Section 138 of the N.I. Act and sentenced him to pay a fine

of `1,000/-, in default to undergo simple imprisonment for

a period of one month and also directed to pay a fine of

`20,000/- to the complainant towards compensation, in

default to undergo simple imprisonment for a period of

three months. Challenging the said judgment of conviction

and order on sentence passed by the Trial Court, the

accused preferred an appeal in Criminal Appeal No.6/2013,

before the learned Sessions Judge's Court, which after

hearing both side, by its impugned judgment dated

05-10-2013 dismissed the appeal filed by the accused,

while confirming the impugned judgment of conviction and

order on sentence passed by the Trial Court. Being

aggrieved by the judgments of conviction and order on

sentence passed by both the Courts below, the accused has

preferred this revision petition.

Crl.R.P.No.906/2013

5. Learned counsel for the revision petitioner

(accused) and learned counsel for the respondent/

complainant are appearing physically in the Court.

L

6. The Trial Court and Sessions Judge's Court's

records were called for and the same are placed before this

Court.

7. Heard the learned counsels from both side.

Perused the materials placed before this Court including

impugned judgments and the Trial Court and Sessions

Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

9. After hearing the learned counsels for the parties,

the only point that arise for my consideration in this revision

petition is:

Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court?

Crl.R.P.No.906/2013

10. Learned counsel for the revision petitioner

(accused) in his argument submitted that, he would not

deny or dispute that the cheque at Ex.P-2 is issued by the

accused in favour of the complainant and that the same has

been returned with the banker's memo/endorsement

"exceeds arrangements" as per Ex.P-5. He submitted that

he also would not dispute that the complainant has issued a

legal notice as per Ex.P-6, demanding the payment of the

cheque amount. However, his contention is that, the said

cheque was issued in the year 2005, but not in the year

2008, and that the complainant has materially altered the

year of the cheque and presented it, as such, the

accused/drawer is not liable to pay the amount. He further

contended that the evidence of DW-1 supported by the

documents produced by him would go to show that it was

the complainant who had borrowed a sum of `60,000/- from

the accused, by executing an On-Demand Promisory Note

as per Exs.D-2 and D-3. However, by demanding additional

loan of `15,000/-, he collected the cheque in question and Crl.R.P.No.906/2013

altering its year, has presented subsequently when

repayment of `60,000/- was demanded from him.

11. Learned counsel for the respondent/complainant

in his argument submitted that, the complainant as PW-1 in

his evidence though has admitted that the year of the

cheque is altered, however, he has stated that the same

was done by the accused himself. He also submitted that

had that been the defence of the accused, he should have

mentioned the said defence by sending a reply to the legal

notice. Therefore, the said defence taken up by the

accused in the Court, at a later stage, would go to show

that it is purely an after-thought.

12. The evidence of PW-1 is nothing but reiteration of

the contents of his complaint. The returned cheque at

Ex.P-2, counter foil of the challan depositing the cheque and

the debit advice slip at Exs.P-3 and P-4 respectively, the

cheque return memo issued by the drawee Bank which is at

Ex.P-5, a copy of the legal notice at Ex.P-6, postal receipts

at Exs.P-6(a) and 6(b), certificate of posting at P-6(c) and Crl.R.P.No.906/2013

postal acknowledgement card at Ex.P-6(d), supports the

evidence of PW-1 that the accused had issued the cheque in

question which was returned for the reason 'exceeds

arrangements'. Thereafter the legal notice sent by the

complainant demanding the payment of the cheque amount

though served upon the accused, he neither replied to it nor

repaid the cheque amount. Thus a presumption about the

existence of a legally enforceable debt forms in favour of

the complainant, however, the said presumption is

rebuttable.

13. In the process of rebuttal of the presumption, the

accused, apart from making several suggestions to PW-1 in

his cross-examination has also examined himself as DW-1,

wherein he has taken a contention that the complainant in

order to pay the maintenance to his wife in a matrimonial

case had availed from him a sum of `60,000/- by executing

a letter and an On-demand Promisory Note. Thereafter, for

the very same purpose, he requested for an additional loan

of a sum of `15,000/- in the year 2005, in which regard, the Crl.R.P.No.906/2013

cheque in question which is at Ex.P-2, was given to him, on

13-07-2005. It is further suggestion made to PW-1 in his

cross-examination and also the evidence of DW-1 that, the

complainant, without even repaying the said loan of

`60,000/-, at a later date, presented the cheque given by

the accused as an additional loan of `15,000/-, by altering

its year, as such, a false case has been filed against him.

14. The suggestion made to PW-1 in that regard was

not admitted as true by the witness. So also the evidence

given by DW-1 on the similar lines also has been denied in

his cross-examination by making denial suggestions, as

such, the alleged loan transaction of `60,000/- between the

complainant and the accused though was put in the mouth

of the complainant in the form of suggestion, the witness

has not admitted the same and hence, the accused could

not successfully rebut the presumption formed in favour of

the complainant under Section 139 of the N.I. Act.

15. The complainant as PW-1 in his cross-examination

has specifically admitted a suggestion as true that the Crl.R.P.No.906/2013

cheque at Ex.P-2 bears an alteration with respect to the

year of the cheque from the year '2005' to '2008'.

However, he contends that the said alteration was made by

the drawer (accused himself). Still, the fact remains that

the admitted alteration of the cheque does not bear the

signature of the drawer regarding the alleged alteration.

16. In addition, contending that the year mentioned

in the cheque at Ex.P-2 has been altered, the accused also

has confronted with the counter foil of the said cheque to

PW-1 suggesting that the same is the counter foil of Ex.P-2

and it also shows the date as 13-07-2005. The witness has

admitted the same and the said counter foil of the cheque

was marked as Ex.D-1(a). Thus, it has stood as an

admitted fact that the complainant himself has admitted

that there is alteration in the year of the cheque, however,

the said alleged alteration has not been authenticated by its

drawer.

Crl.R.P.No.906/2013

17. In M.L. Tannan's "Banking Law and Practice in

India" Twenty-eighth Edition - 2021, he has defined

"Material alterations" at page 950, as below:

"An alteration is material, which in any way alters materially or substantially the operation of the instrument and the liabilities of the parties thereto, irrespective of the fact whether or not the change is prejudicial to the payee."

Apart from stating that a banker must be very careful

when there is a material alteration in the cheque presented for

payment and that it should see that such alteration has been

made with the drawer's consent or authority and is confirmed

by his signature, Tannan has also given few examples of

material alterations in which the alteration of the date of the

instrument with the purpose of accelerating or postponing the

time of the payment comes on the top.

18. Under Section 87 of the N.I. Act, a Negotiable

Instrument, which is materially altered becomes void as

against any one who is a party thereto at the time of Crl.R.P.No.906/2013

making such alteration and does not consent thereto, unless

it was made in order to carry out the common intention of

the original parties. Thus, when admittedly, the cheque at

Ex.P-2 has been materially altered, by virtue of its

alteration in the year of the date column, and since the

same does not bear any authentication signature by its

drawer, the said cheque becomes invalid from its

enforcement. The statements made by PW-1 in his cross-

examination admitting the counter foil of the said cheque

and the correctness of the date mentioned thereafter as

'13-07-2005' further supports the contention of the

accused that the cheque has been materially altered.

19. In that view of the matter, without going much

into the other aspects of the alleged defence of the accused,

about the alleged loan of `60,000/-, suffice it to say that

admittedly, the cheque at Ex.P-2 is shown to be materially

altered, as such, has lost its validity in the eye of law.

20. Thus, even though the materially altered cheque

is shown to have been returned with the reason 'exceeding Crl.R.P.No.906/2013

arrangements', since the instrument itself has lost its

validity due to the material alteration, no liability can be

fastened upon the accused on the alleged dishonor of the

cheque. However, both the Trial Court and Sessions Judge's

Court since have not considered this aspect but have hastily

come to a conclusion that merely because the cheque, its

memo for dishonor, copy of the legal notice and the postal

receipts and postal acknowledgement card were produced,

the complainant has proved the alleged guilt against the

accused. Since the said finding is now proved to be an

erroneous one, interference at the hands of this Court is

warranted.

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition stands allowed;

[ii] The impugned judgment of conviction and

order on sentence passed by the III Additional Senior

Civil Judge and Judicial Magistrate First Class,

Davanagere, at: Davanagere, dated 09-01-2013, in

Criminal Case No.2550/2009 (Old C.C.No.2214/2008), Crl.R.P.No.906/2013

holding the petitioner herein (accused No.1) guilty of the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881, and the impugned judgment

passed by the II Additional District and Sessions Judge at

Davanagere, dated 05-10-2013, in Criminal Appeal

No.6/2013, confirming the judgment of the Trial Court,

are hereby set aside;

[iii] The petitioner (accused) - Sri. D.

Chandraiah, S/o. Revanasiddaiah, Aged about 44 years,

R/o.# 855/56, 2nd Floor, 1st Stage, Shivakumarswamy

Layout, Davanagere, is acquitted of the offence

punishable under Section 138 of the Negotiable

Instruments Act, 1881.

Registry to transmit a copy of this order to both the

Trial Court and also to the Sessions Judge's Court along

with their respective records, immediately.

Sd/-

JUDGE BMV*