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TMI Blog2021 (6) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... e [ 1998 (4) TMI 569 - KERALA HIGH COURT] was pleased to observe that, when a cheque is issued for a valid consideration with no dispute regarding the signature, amount and name, it cannot be said that, putting a date on the cheque by the payee who is the holder of the cheque in-due-course would amount to material alteration rendering the instrument void. In the instant case, if the pre-printed year of the cheque were to be used without effecting any change in the year, it should have been used on or before the year 2009 but not thereafter. However, the cheque is said to have been given in the year 2013, as such, the year on the cheque is also shown as '2003' by overwriting the digit '1' against '0' at tens' place. Thus, the cheque is shown to have been issued in the year 2013 - No doubt it is an alteration, but had it been a material alteration, the banker while dishonouring the cheque would have, apart from showing the reason of insufficiency of funds in the account of the drawer, would also have mentioned the reason of alteration require drawer's authentication . It is for the reason that the cheque return memo which is at Exhibit P-2 in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landed property to an extent of 04 acres 01 gunta in Survey Nos.28 and 185 of Kudlu Village, Sarjapura Hobli, Anekal Taluk. In that regard, both of them had entered into an agreement dated 15-10-2010. As on the date of the agreement to sell, the sale consideration of a sum of ₹ 16.00 lakhs was paid to the accused as an advance amount. Subsequently, the accused failed to comply the terms of the agreement for sale. However, on repeated demands, the accused agreed to return the advance sale consideration amount received by him, in which direction, he issued a cheque bearing No.010343 dated 24-04-2013 for a sum of ₹ 16.00 lakhs, drawn on the Lakshmi Vilas Bank, Koramangala Industrial Layout, Bangalore, in favour of the complainant and assured the complainant that the said cheque would be honoured, when presented for realisation. Accordingly, the complainant presented the said cheque through his banker for realisation, but the said cheque came to be dis- honoured and unpaid with the banker's endorsement funds insufficient . The complainant got issued a legal notice dated 24-05-2013 to the accused, demanding the payment of the cheque amount. Though the notice sent throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also not in dispute that, the said cheque, when presented for realisation by the complainant through his banker, the same came to be unpaid and returned with the banker's endorsement funds insufficient . To this extent, the evidence of the complainant as PW-1 has remained un-denied and un-disputed from the accused's side. In the cross-examination of PW-1, the accused himself has stated that, he had issued two cheques to the complainant, however, it was under the alleged agreement between them dated 05-04-2007. Neither the complainant nor the accused has produced the copy of the alleged agreement dated 05-04-2007. Except making such a suggestion, the accused also has not produced any document to show that, the alleged cheque was not given to the complainant by virtue of the alleged non- performance of his promise under the agreement to sell dated 15-10-2010 which is at Exhibit P-5, but it was given under the alleged agreement dated 05-04-2007 only as a security. On the other hand, the accused as DW-1 himself has admitted about he entering into an agreement with the complainant as per Exhibit P-5 which is dated 15-10-2010. The evidence of PW-1 that the accused failed to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him towards the clearance of his liability towards the complainant has been dis-honoured. The complainant had demanded the said cheque amount together with interest thereupon @ ₹ 2% per month. 12. Learned counsel for the petitioner/accused in his argument also has taken a contention that, the said notice was not served upon the accused. The complainant has produced two postal receipts at Exhibits P-3(a) and P-3(b) and the postal acknowledgement card at Exhibit P-4 to show that the notice sent under Registered Post Acknowledgement Due (RPAD) has been duly served upon the accused. The postal acknowledgement card bears the postal seal and also bears the signature of the recipient of the postal article. DW-1 in his further cross-examination has admitted a suggestion as true that, the address shown in the postal acknowledgement card at Exhibit P-4 is his address only. The very same address is also shown in the legal notice at Exhibit P-3. Therefore, when the notice is sent to the correct and admitted address of the accused and under registered post and the postal acknowledgement card at Exhibit P-4 also shows that the same has been duly delivered to the addressee, the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s- examination of PW-1 or in his evidence as DW-1, except taking a contention that, the date shown in the cheque was left blank by him and it was the complainant who filled the said date by himself. The said contention was not even suggested to PW-1 in his cross-examination, but the accused had taken that contention in his evidence as DW-1. However, the complainant had denied the same in the cross-examination of DW-1. 18. Learned counsel for the respondent/complainant in his argument vehemently submitted that, there is no evidence to show that the said filling up of the date in the cheque was by the complainant and that it has resulted into a material alteration. He further submitted that, neither filling up of the date in cheque nor filling up of the year of issuance of the cheque with prior printing of the first three digits of the year would amount to material alteration. In his support, learned counsel relied upon few judgments of various High Courts which are as below:- [i] In the case of Seth Loonkaran Sethiya and others Vs. Mr. Ivan E. John and others reported in (1977) 1 Supreme Court Cases 379, a Full Bench of the Hon'ble Apex Court, while answering the Quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trument. The debtor complaining of material alteration should not rest content by establishing that there was a formal alteration which is innocuous and superfluous, but he should also further establish that there was a material alteration in the sense that what is sought to be put in Court was not the contract between the parties and was not what was intended between the parties at or about the time when it was executed. This is the underlying principle behind the concept of material alteration... [iii] In the case of Bhaskaran Chandrasekharan Vs. Radhakrishnan reported in 1998 SCC OnLine Ker 464, wherein also, the question involved was as to whether the insertion of a date on an un-dated cheque would amount to 'material alteration' within the meaning of Section 87 of the N.I. Act, a Division Bench of the Kerala High Court, after referring to Seth Loonkaran Sethiya's case (supra) at paragraph 17 of its judgment, was pleased to hold that, when a cheque was issued for a valid consideration with no dispute regarding the signature, amount and name, it cannot be said that, putting of date on the cheque by the payee, who is the holder of the cheque in-due- course would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be executed or if it is made at some subsequent period with the privity of the parties charged therein and in the absence of any fraud, the instrument would still be valid and enforceable. 19. In the instant case, the accused as DW-1 in his examination-in-chief has taken a contention that, the date column in the cheque at Exhibit P-1 was left blank by him and the same was filled by the complainant. Except this, he has not at all stated as to, whether he did not have his consent for the complainant filling up the date or whether he had precluded the complainant from filling the date in the instrument without his knowledge or consent. Therefore, even assuming that, it is the complainant who has filled the date, still, the drawer of the instrument, by giving such an un-dated cheque to the complainant, has impliedly permitted the complainant to fill the date in the Negotiable Instrument (cheque) by himself. As observed, in the instant case, the accused nowhere has stated that he had any objection for the complainant filling up the date in the cheque. It is on a similar point, the Division Bench of the Kerala High Court in Bhaskaran Chandrasekharan's case (supra) was pleased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year of issuance of the cheque. No doubt it is an alteration, but had it been a material alteration, the banker while dishonouring the cheque would have, apart from showing the reason of insufficiency of funds in the account of the drawer, would also have mentioned the reason of alteration require drawer's authentication . It is for the reason that the cheque return memo which is at Exhibit P-2 in its Code No.'1', though mentions the reason for return as funds insufficient , the Code No.'12' of the very same exhibit for return mentions alterations require drawer's authentication . Since the banker has not considered the cheque as materially altered, the pre-printed single digit of the year has been altered to put the cheque in use in the current year which was '2013' appears to have confined the reason for returning of the cheque only for the other reason of insufficiency of funds in the account of the drawer. Had really the petitioner/accused intended to establish that there was material alteration in the cheque at Exhibit P-1, nothing had prevented him from summoning his banker and examining him as his witness, which also the accused did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstance, the quantum of fine imposed which is ₹ 1,05,000/- in addition to the cheque amount appears to be on a higher side. As such, in order to make the said sentence of fine proportionate to the gravity of the proven guilt against the accused, particularly in the light of the facts and circumstances of the present case, the said fine amount imposed requires to be reduced. It is for that limited purpose only, the present revision petition deserves to be allowed-in- part. Accordingly I proceed to pass the following: ORDER [i] The Criminal Revision Petition is allowed-in-part; [ii] The judgment of conviction passed by the learned XIX Additional Chief Metropolitan Magistrate at Bangalore City, in C.C.No.26605/2014 dated 01-07-2016, convicting the accused/present petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, which was further confirmed by the learned LIX Additional City Civil and Sessions Judge, Bangalore City, in Criminal Appeal No.786/2016 dated 01-09-2017, is confirmed; [iii] However, the order on sentence passed by the learned XIX Additional Chief Metropolitan Magistrate at Bangalore City, in C.C.No.26605 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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