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TMI Blog2007 (6) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 11 lacs from complainant No. 1 and in order to repay the loan issued two cheques Number 8630 dated 31-12-2001 and 8629 dated 1-4-2002 for Rs. 6 lacs and 5 lacs (total 11 lacs) respectively with the clear understanding and stipulation that the cheques would be honoured and encashed on presentation. Complainant presented these two cheques at Central Bank of India, Lahurabeer Branch, Varanasi but the same were returned to the complainant on 1-7-2002 with the endorsement on covering memo exceeded arrangement' meaning thereby that the accused had issued the cheques knowing well that there was no sufficient fund in his account. It shows the dishonest intention of the accused to deceive the complainant. The complainant through legal registered notice dated 16-7-2002 called upon the accused to make payment of the amount of Rs. 11 lacs with interest @ 24% per annum and the cost of the notice Rs. 600/- within 15 days from the receipt of the notice but the accused did not make any payment. Thereafter the complaint was filed on 6-8-2002 as is clear from the order sheet. 4. The complainant examined Satish Kumar Saluja one of the directors of the limited company on 26-8-2002. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not signed as security for loans. The accused had admittedly taken a loan and had issued two cheques towards payment of the loan as admitted by him in his first statement. He also contended that the fact that cheques were given was also admitted in the reply notice, although in his statement under Section 313, Cr. P.C. accused denied same fact. Learned Counsel for the appellants has contended that the prosecution witnesses made positive statement and stated that the cheques were issued by the accused knowing that the money was not in his account and that the cheques could not be paid and, therefore, the cheques were returned back by the bank on the ground exceeds arrangements. He has contended that the cheques were not returned on the ground that there was any interpolation or that the signatures were not of the accused. Learned Counsel for the appellants has contended that the complainant No. 2 being employee of the company was entitled to present the complaint and the same was maintainable and the accused intentionally denied and cannot be absolved from his liability-for the criminal act. 8. Learned Counsel for the accused has contended that complaint itself was not maintainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint and the date of the complaint is also not mentioned therein. Carbon copy of the notice was prepared,. He had seen the original copy of the carbon copy of the notice. A photocopy of the notice has been filed. The complainant No. 2 was authorised to file the complaint. The accused did not meet him after giving the cheques on 15-9-2001. He has denied suggestion that he entered the date in the cheques himself to make them valid for payment. 10. P. W. 2 Raj Kumar has stated that he is simply an employee of the company and the accused had taken loan and given cheques for Rs. 6 Lacs and Rs. 5 Lacs and had said that the payment would be made if presented in the bank. Cheques were of-September 2001 and the accused had corrected the cheques in December 2001 and April 2002 and had also put his signature. When the cheques were presented in the Bank, they were returned for want of money. Legal notice was given which was served on the accused and the accused had also given reply. But he did not make any payment and then the complaint was filed. He also referred to the balance sheet of the company filed in the case. In cross examination he has stated that he does not know if any agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the accused. Denial/averments in reply by accused are not sufficient to shift the burden of proof on to the complainant. Accused has to prove in trial by leading cogent evidence that there was no debt or liability. In the instant case, accused has not given any such evidence and, therefore, his contention that the cheques were issued as security cannot be accepted. Therefore, I am of the opinion that the finding in this regard as recorded by the learned Magistrate is not correct. 12. Learned Counsel for the appellant has submitted that the learned Magistrate has erred in not accepting the notice given by the complainant on the ground that the carbon copy of the notice was not filed and that the photocopy as filed was not admissible in evidence. Learned Magistrate has also held that in the complaint, it has not been mentioned as to when the notice was given and when this notice was served on the opposite party. Learned Counsel for the accused appellant has contended that the photocopy as filed by the complainant was not proved and was not admissible and learned Magistrate has recorded the correct finding in this regard. It is correct that in the complaint, the complainant did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has also been made in para-1 of the complaint that complainant No. 1 Fragrant Leasing and Finance Company Limited has authorised the complainant No. 2 to present the complaint. Complainant No. 2 has been examined at P. W. 2 and he has stated in cross examination that he is a peon in the company and he does not know what is written in the complaint. Owner has gone to the counsel to get the complaint drafted. He knows that one should not sign the papers without reading or without hearing, after getting it read by someone. He had signed the complaint as he was asked by owner. It was the duty of the owner to file the complaint. The owner had written the authority letter for filing the complaint. Authority letter is not on the file. 15. P. W. 1 Satish Kumar Saluja who is one of the directors has stated in his cross examination that the complainant No. 2 was authorised to file the complaint and this fact has been mentioned in the complaint also. The complainant filed the Memorandum and Articles of Association. Paras-48 and 51 of the Articles of the Association provide that the Chairman, Managing Director, Executive Director(s), Director(s) or any other person appointed by the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue course. The complaint by Director without proper authorisation was held to be not maintainable. In the instant case, although one of the director examined himself as witness but he specifically stated that the complainant No. 2 Raj Kumar was authorised to file the complaint. In the circumstances there was defect for want of authority letter and the complaint itself was not competent and the finding as recorded by the learned Magistrate cannot be said to be without any basis and incorrect. 19. Learned Counsel for the accused has vehemently argued that interpolation was made in the cheques as dates were changed without any authorisation from the accused and in view of the provisions of Section 87 of the Act, the cheques became void and no action could be taken on their basis under Section 138 of the Act. Section 87 provides that any material alteration of a Negotiable Instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties. In this case the cheques were admittedly given on 15-9-2001. They were presented in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the knowledge of the accused and was with his consent and that it was done to carry out the common intention of the parties. 21. Learned Counsel for the appellant has cited the case of L. C. Goyal v. Suresh Joshi (Mrs) and Ors. [1999] 1 SCR 1018, where it has been held by the Hon'ble Apex Court that where the drawer denies his signature and pleads that he could not be held responsible unless opinion of handwriting expert was obtained and if the cheques are dishonoured on the ground of insufficient funds the plea of forged signature could not be accepted. But the facts of this case are different and this ruling does not help the appellant. Although in the instant case also the cheques were returned on the ground that 'exceed arrangement' and signature of drawee was not disputed, but the fact remains that there is interpolation in the dates which is very material. 22. In the case of Jayantilal Goel v. Smt. Zubeda Khanum AIR 1986 AP 120, cited by the learned Counsel for the accused, it has been held that it is settled law that the person who is in custody of document subsequent to its execution, should there be any alteration has to discharge the burden of establishi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t him are not by themselves, de-linked from the evidence, be used for arriving at a finding that the accused had committed the offence. Thereafter in case of Mohan Singh v. Prem Singh and Anr. 2003 SCC 1514 : AIR 2002 SC 3582 it has been held by the Hon'ble Apex Court that statement of the accused under Section 313, Cr. P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the, evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313, Cr. P.C. cannot be made the sole basis of his conviction. 24. Therefore, the statement of the accused be 'referred while appreciating the prosecution evidence but it cannot be made a substitute or the sole basis for conviction of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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