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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 ..... ayee. 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. Whether material alteration of the cheque was made by the accused himself or with his consent? - HELD THAT:- Ext.P1 is a cheque which was subjected to material alteration and that the complainant failed to prove that material alteration of the cheque was done or made by the accused himself or with his consent. The plea of the accused is also not probable. He did not even give any intimation to the bank regarding the loss of the cheque. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal 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 adduced by the accused. 5. The complaint was instituted by PW1, the power of attorney holder of the complainant. The accused had challenged the competency of PW1 to institute the complaint. The trial court found that PW1 had the authority to institute the complaint on behalf of the complainant. The accused had also alleged that Ext.P1 cheque is void on account of material alteration. The trial court accepted this plea and found that material alteration of Ext.P1 cheque was effected by the complainant. Consequently, the trial court found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him. 6. Heard learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot 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 the cheque dated 06.12.2003 for ₹ 70,000/- alleged to have been executed and delivered by the accused to the complainant. Ext.P2 memorandum issued from the bank shows that the cheque was returned unpaid for want of sufficient funds in the account of the accused. Ext.P3 is the intimation given to the complainant from her bank regarding the dishonour of the cheque. It is dated 13.12.2003. Ext.P4 is the cover containing the notice issued to the accused by the complainant, by registered post, demanding payment of the amount of the cheque. The postal seal on Ext.P4 cover shows that the notice was returned to the complainant unserved on 29.12.2003. The complaint wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 made by the accused himself or with his consent. 19. The evidence of PW1, the power of attorney holder of the complainant, does not throw any light with regard to the circumstances under which alteration was made in the cheque with regard to the name of the payee. PW1 has got a specific case that Ext.P1 cheque was executed by the accused and delivered by him to the complainant in his presence. However, in examination-in-chief (proof affidavit) he has not stated anything about the correction made in the cheque with regard to the name of the payee. On cross examination also, PW1 has not stated anything with regard to the circumstances under which correctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the cheque was done or made by the accused himself or with his consent. 25. The effect of making a material alteration on a negotiable instrument without the consent of the party bound under it is exactly the same as that of cancelling the instrument. By alteration, the identity of the instrument is destroyed. If there is any material alteration in the cheque which renders it void, no criminal prosecution can be launched based on such a cheque (See Ramachandran v. Dinesan: 2005 (1) KLT 353). 26. Of course, the accused had got a plea that he had drawn the cheque in his own name for withdrawing amount from his bank and he had entrusted the cheque with h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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