2021 (1) TMI 625 - HC - Indian Laws

Dishonor of Cheque - acquittal of accused - offence under Section 138 of the Negotiable Instruments Act, 1881 - the trial Court came to the conclusion that the complainant failed to establish the ingredients of Section 138 of the N.I. Act and the trial Court held that in view of material alterations of cheque-Ex. P1, Section 87 of the N.I. Act renders the same instrument as void and Ex. P1-cheque is materially altered - HELD THAT - It is not in dispute that complainant is seeking to recover an amount of ₹ 4,00,000/- from society namely Sasya Shyamala Souharda Credit Co-operative Limited. Complainant has not made society as party, accused in the complaint. Though trial Court has dismissed the case and discharged accused No. 2, no challenge is made to such dismissal of case against accused No. 2. Nevertheless, accused No. 1/respondent herein has deposed that she has not signed the cheque Ex. P.1 and she disputes the signature on Ex. P.1. She has also disputed issuance of cheque itself and also existence of any debt or liability. When there is any alteration made by an indorsee, the same is void if the indorsee does not consent thereto with regard to making of such alteration. Therefore the word consent used in the said provision would be an express consent on such material alterations. In the present case on hand Ex. P.1 clearly exhibits the indorsement by accused No. 2 just below the alterations made on date of cheque. But admittedly there is no such indorsement by respondent/accused No. 2 who is also supposed to be the signatory of the cheque. It is also apparent on face of Ex. P.1 that there is no indorsement made below the alteration of the account number on Ex. P.1. When this fact was confronted to DW.1 complainant, she has no doubt admitted alterations on the cheque, but has denied suggestion that she altered the cheque. On a perusal of evidence of PW.1, it is clearly seen that PW.1 does not know about alleged transaction mentioned in the complaint as she has clearly deposed by stating that she does not know as to when and on what date she has deposited a sum of ₹ 68,75,148/- with the society. As stated earlier, at one breath she says that amount is deposited by her and at another breath she says amount is deposited by her husband. It is also apparent that after cross-examination of PW.1 and evidence of DW.1, no other material has been placed before the Court other than Ex. P.1 by complainant to substantiate the fact that there is existence of subsisting legally recoverable debt - on the basis of the evidence adduced by the respondent - accused No. 1, it can be safely concluded that the respondent - accused No. 1 has rebutted the presumption under Section 139 of NI Act in favour of the Complainant. No evidence is forthcoming to prove the contents of the said Ex. P9. In fact, the undated Ex. P9 produced by the Complainant and the material alteration on Ex. P1 which is indorsed by accused No. 2 and dismissal of the Complainant for non-prosecution as against accused No. 2, the same having reached finality and no action has been taken by the Complainant against accused No. 2, all goes to prove that there is collusion between the Complainant and accused No. 2. All these aspects have been considered by the trial Court in detail and an order of acquittal is rightfully passed by the trial Court. It is apparent on the face of Ex. P1 that there is material alteration and there is no endorsement by respondent - accused No. 1 to consent to the said material alteration on Ex. P1. Therefore, as per Section 87 of NI Act any negotiable instrument with material alteration renders the same void as there is no consent thereto for the said material alteration. In the present case, admittedly there is only one signature under the date on Ex. P1 and admittedly, the respondent - accused No. 1 has not indorsed the material alteration - without any doubt it can be safely concluded at Ex. P1 is hit by Section 87 of NI Act. The trial Court has considered all these material aspects both oral or documentary and has arrived at a well reasoned order of acquittal, which does not call for interference - Appeal dismissed.

Summary

Issues Involved:
1. Rebuttal of presumption under Section 139 of the Negotiable Instruments Act.
2. Validity of the judgment of acquittal passed by the trial court.

Issue-wise Detailed Analysis:

1. Rebuttal of presumption under Section 139 of the Negotiable Instruments Act:

The complainant alleged that the accused issued a cheque for ?4,00,000/- to discharge a liability, which was dishonored due to insufficient funds. Despite receiving a legal notice, the accused did not repay the amount, leading to a complaint under Section 138 of the N.I. Act. The trial court acquitted the accused, citing material alterations in the cheque, rendering it void under Section 87 of the N.I. Act.

The complainant argued that the trial court's judgment was arbitrary and ignored the admission of liability by accused No. 2 in a reply to the legal notice (Ex. P9). However, the respondent contended that the complaint was not tenable as the society (Sasya Shyamala Souharda Credit Co-operative Ltd.) was not made a party to the proceedings, and the cheque had material alterations without the necessary endorsements.

The court examined whether the accused rebutted the presumption under Section 139 of the N.I. Act, which presumes that the holder of a cheque received it for the discharge of a debt or liability. The accused successfully rebutted this presumption by proving that the cheque had material alterations and was not signed by accused No. 1. The evidence showed that the complainant did not know who issued the cheque and admitted alterations in the cheque, making the transaction questionable.

2. Validity of the judgment of acquittal passed by the trial court:

The trial court's judgment was based on the finding that the cheque (Ex. P1) had material alterations, making it void under Section 87 of the N.I. Act. The complainant failed to challenge the dismissal of the case against accused No. 2, who allegedly colluded with the complainant. The evidence presented by the complainant, including Ex. P9, was found to be unreliable as it was undated and lacked corroborative material.

The court concluded that the trial court correctly acquitted the accused, as the complainant did not prove the existence of a legally recoverable debt. The material alterations in the cheque and the lack of endorsement by accused No. 1 rendered the cheque void. The complainant's failure to take action against accused No. 2 further weakened the case.

Conclusion:

The appeal was dismissed, and the judgment of acquittal passed by the trial court was confirmed. The court held that the accused successfully rebutted the presumption under Section 139 of the N.I. Act, and the complainant failed to prove the existence of a legally enforceable debt. The material alterations in the cheque and the lack of necessary endorsements made the instrument void under Section 87 of the N.I. Act.