Kerala High Court
Aravindakshan vs State Of Kerala on 2 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
CRL.A NO. 2004 OF 2006
AGAINST THE ORDER/JUDGMENT DATED 01.08.2006 IN Crl.L.P. NO.361 OF
2006 OF HIGH COURT OF KERALA ARISING OUT OF THE ORDER/JUDGMENT
DATED 18.01.2006 IN CC NO.39 OF 2005 OF JUDICIAL MAGISTRATE OF
FIRST CLASS-IV, NEYYATTINKARA
APPELLANT/COMPLAINANT:
ARAVINDAKSHAN
S/O.MADHAVA PANICKER, SUDHA BHAVAN,
POTTAYIL PALLINADA, IRUMBIL DESOM, NEYYATTINKARA
VILLAGE, NEYYATTINKARA TALUK.
BY ADVS.
SRI.PRAKASH P.GEORGE
SRI.BOBAN VARGHEESE
RESPONDENTS/STATE AND ACCUSED:
1 STATE OF KERALA
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 SUKUMARAN NAIR,
AMBOTTUKONATHU VEEDU, NEAR NEERAKATHALA,
MUDIPPURA, NADOORKOLLA DESOM, KOLLAYIL VILLAGE,
NEYYATTINKARA TALUK.
SRI.SANAL P RAJ, PP
SRI.S.MOHAMMED AL RAFI
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
31.07.2024, THE COURT ON 02.08.2024 DELIVERED THE FOLLOWING:
2
Crl. Appeal No.2004 of 2006
C.S.SUDHA, J.
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Crl. Appeal No.2004 of 2006
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Dated this the 2nd day of August 2024
JUDGMENT
This appeal under Section 378(4) Cr.P.C. has been filed by
the complainant aggrieved by the order of acquittal dated
18/01/2006 in C.C.No.39/2005 on the file of the Judicial First
Class Magistrate Court-IV, Neyyattinkara. The appellant will be
referred to as the complainant and the 2 nd respondent as the
accused.
2. According to the complainant, in discharge of an
amount of ₹20,500/- borrowed from him, the accused issued
Ext.P1 cheque dated 29/03/2001 drawn on Thiruvananthapuram
District Co-operative Bank, Udhayankulangara Branch. When the
cheque was presented for collection at the Thiruvananthapuram
District Co-operative Bank, Aruvippuram Branch, the same was
dishonoured due to insufficiency of funds in the account of the
accused. The complainant was informed of the dishonour by
Ext.P2 memo dated 04/04/2001. On 25/04/2001, the complainant
caused to issue Ext.P3 advocate notice calling upon the accused
to pay the cheque amount. Ext.P4 is the postal receipt of the
notice sent and Ext.P5 is the acknowledgment card evidencing
the fact that the notice has been accepted by the accused. The
accused has not repaid the cheque amount and hence the
complaint.
3. After the case was taken on file as C.C. No.39/2005
by the trial court, the accused entered appearance on receipt of
summons. He was furnished with the copies of all the relevant
records relied on by the complainant. The particulars of the
offence punishable under Section 138 of the Negotiable
Instruments Act (the Act) was read over and explained to the
accused to which he pleaded not guilty. PW1 and PW2 were
examined and Exts.P1 to P6 were marked on the side of the
complainant. After the evidence of the complainant was closed,
the accused was questioned under Section 313(1)(b) Cr.P.C. The
accused denied all the incriminating circumstances adduced in
evidence against him. He further stated that he had borrowed an
amount of ₹2,500/- from the complainant and then as security for
the amount, he had given a cheque for an amount of ₹2,500/-. He
repaid an amount of ₹2,000/- and the balance amount to be
repaid was ₹500/-. Since he defaulted payment of the amount,
the complaint was filed. Thereafter, he repaid the remaining
amount also, at which time, the complainant demanded an
amount of ₹5,000/-. The accused also examined himself as DW1
and marked Exts.D1 series and D2 in support of his defence.
4. The trial court on a consideration of the oral and
documentary evidence and after hearing both sides found
material alteration in Ext.P1 cheque and hence acquitted the
accused under Section 255(1) Cr.P.C. Aggrieved, the complainant
has come up in appeal.
5. The only point that arises for consideration in this
appeal is whether there is any infirmity in the findings of the trial
court calling for any interference by this Court.
6. On 15/11/2022, it was submitted on behalf of the
appellant that he is no more and time was sought to move an
application for bringing his near relatives on record for
prosecuting the appeal. Inspite of more than sufficient
opportunity being granted, no steps were taken in the said
direction. When the matter was taken up on 25/07/2024, there
was no representation for the appellant. Hence, in the interest of
justice, an adjournment was granted and the matter was posted to
31/07/2024 for hearing. However, on the said day also, there was
no representation on behalf of the appellant. In such
circumstances, this Court heard the learned counsel for the 2 nd
respondent. This Court is proceeding to consider the appeal on
merits after going through the entire records of this case.
7. Perused the records including the oral and
documentary evidence adduced by both sides. The definite case
of the accused is that he had issued a cheque for ₹2,500/-.
However, the cheque amount was altered/corrected as ₹25,000/-.
Therefore, there is material alteration and hence the prosecution
based on an invalid instrument cannot be sustained.
8. A perusal of Ext.P1 cheque clearly shows that
corrections have been made in the amount written in figures in
Ext.P1 cheque. The accused has not initialed or affixed his
signature near the corrections made. The corrections made are
certainly material alteration of the instrument. Therefore, the trial
court was right in relying on the dictum in Ramachandran vs
Dinesan, 2005 (1) KLT 353 and holding that when an amount
once written is corrected without the knowledge and consent of
the maker of the cheque, it amounts to material alteration. As the
cheque itself is an invalid one, no prosecution be possible on the
basis of the said document. Hence, I do not find any infirmity,
illegality or perversity in the findings of the trial court calling for
any interference by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
NP
