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TMI Blog2019 (8) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- to her. The complainant presented the cheque in the bank. It was dishonoured for the reason that there was no sufficient amount in the account of the accused. On 18.12.2003, the complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused did not accept the notice though he received intimation regarding the notice from the postal authorities. The accused did not pay the amount. 3. The case was initially disposed of by the trial court by judgment dated 08.02.2005 by convicting and sentencing the accused for the offence punishable under Section 138 of the Act. The accused challenged the aforesaid judgment in appeal before the Court of Session. The appellate court set aside the order of conviction and sentence and remanded the case to the trial court to enable the complainant to adduce further evidence in the case. 4. During the trial of the case conducted initially, PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. The accused had got himself examined as DW1. After the remand of the case, PW2 was examined and Exts.P7 to P9 documents were marked on the side of the complainant. No further evidence was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt.P6 regarding the authority of PW1 to institute the complaint stands cleared by the evidence of the complainant (PW2). She has categorically stated that she had executed Ext.P6 power of attorney authorising PW1 to institute cases on her behalf. 9. The power of attorney holder is the agent of the grantor. When the grantor authorises the attorney holder to initiate legal proceedings and the attorney holder accordingly initiates such legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his power of attorney holder and not by the attorney holder in his personal capacity. True, the power of attorney holder cannot file a complaint in his own name as if he is the complainant. He can initiate criminal proceedings on behalf of the principal. Filing of a complaint under Section 138 of the Act through the power of attorney holder is perfectly legal and competent (See A.C Narayanan v. State of Maharashtra : AIR 2014 SC 630). 10. In the aforesaid circumstances, the trial court has correctly found that PW1 had authority, by virtue of Ext.P6 power of attorney, to institute the complaint on behalf of the complainant. 11. Ext.P1 is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to carry out the common intention of the original parties. Alteration by indorsee - Any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of Sections 20, 49 and 86 and 125". 17. The party who consents to the alteration as well as the party who made the alteration are not entitled to complain against such alteration. If the drawer of the cheque himself altered the cheque, he cannot take advantage of it later by saying that the cheque became void as there is material alteration thereto. Even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also cannot be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed (See Veera Exports v. Kalavathy: AIR 2002 SC 38). 18. Therefore, the question now arises whether material alteration of the cheque was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he correction in the cheque is not attested or countersigned by the accused. As rightly opined by the court below, when the cheque contained a correction with regard to the name of the payee, which was not even attested by the signature of the accused, it is highly improbable that the complainant would have accepted it. The complainant is not a rustic and illiterate lady. She is the director of a book publishing company. In such a situation, the plea of the complainant that she accepted the cheque given by the accused which contained a correction of the name of the payee, cannot be believed. 23. When there is an alteration in the cheque with regard to the name of the payee, the burden is upon the complainant to prove that such alteration was made by the accused himself or that it was made with the consent of the accused. The evidence of PW1 and PW2 does not prove that the alteration in the cheque with regard to the name of the payee was made by the accused himself or that it was made with his consent. 24. The upshot of the discussion above is that Ext.P1 is a cheque which was subjected to material alteration and that the complainant failed to prove that material alteration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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