IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.1040 OF 2010 BETWEEN:
H.T. KENCHEGOWDA S/O. THIMME GOWDA, MAJOR, COFFEE PLANTER, RESIDENT OF HANGARAVALLY VILLAGE AND POST, CHIKAMAGALUR TALUKA AND DISTRICT.
(BY SRI UMESH P.B., ADVOCATE FOR SRI R.B. DESHPANDE, ADVOCATE) AND S.D. UMESH S/O. DIBBEGOWDA, MAJOR, COFFEE PLANTER, RESIDENT OF SIRAVALALU VILLAGE, KADAL CROSS, VASTHARE POST, CHIKAMAGALUR TALUK AND DISTRICT, OLD ADDRESS "SRI BYRAVESHWARA COFFEE LINKS" BASAVANAHALLY, NEAR SHANKARMUTT, CHIKAMAGALUR - 577 101.
(BY SRI M.K. BHASKARAIAH, ADVOCATE) * * * ... APPELLANT ... RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 17-11- 2005 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-I, CHIKMAGALUR IN CRL.A.No.99/2005 AND CONVICT THE RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT BY CONFIRMING THE JUDGMENT AND ORDER DATED 22-06-2005 PASSED BY THE ADDITIONAL CHIEF JUDGE (JR.DN) AND JMFC, CHIKMAGALUR IN C.C.NO.2640/2003.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is preferred by the appellant/complainant against the respondent-accused being aggrieved by the judgment of acquittal passed by the Fast Tract Court – I at Chickkamagaluru in Criminal Appeal No. 99/2005 dated 17.11.2005 wherein the Appellate Court has set aside the judgment of conviction and sentence passed against the respondent in C.C.No.2640/2003 dated 22.06.2005 for the offence under Section 138 of Negotiable Instrument Act (hereinafter referred as NI Act) 2. Heard both the learned counsel for the appellant as well as respondent.
3. The ranks of the parties before the trial Court is retained for the convenience.
4. Before adverting the arguments of the learned counsel, it is worth to mention the fact of the case – appellant-complainant accused before the trial Court as hereunder:
5. The complainant (the appellant hereunder) has filed the complaint under Section 200 of Cr.P.C. against the accused for the offence punishable under Section 138 of NI Act alleging that the accused issued a cheque- Ex.P1 for discharging the liability of Rs.1,63,000/- vide cheque dated 31.01.2002 drawn in Canara Bank, Basavanahalli Extension, Chikkamagaluru. On presentation of the cheque by the complainant in his bank, the cheque was returned with the endorsement of the bank that the account of the accused was closed vide endorsement dated 22.03.2002, then he had issued legal notice on 26.03.2002. The notice sent under certificate of posting has been served on the accused, no reply has been received. Hence, the complainant filed the complaint before the trial Court.
6. The trial Court after taking cognizance, issued notice to the accused. He has appeared before the Court and pleaded not guilty and to prove his case, the complainant himself examined as PW.1 and got marked 8 documents except cross examining the complainant by denying the case of the complainant. The accused has not chosen to lead any defence evidence. After hearing the arguments of both the sides, the learned trial Judge found accused guilty and convicted and sentenced to undergo imprisonment for 6 months and to pay compensation of Rs.1,63,000/- to the complainant.
7. Being aggrieved by the judgment of conviction, the accused filed an appeal before the Sessions Court i.e., the Fast Track Court, Chikkamagaluru in Criminal Appeal No.99/2005 and taken the various contentions that he has not issued any cheque and there is material alteration in the cheque in respect of date and denied the legal liability. After considering the arguments, the learned Appellate Court accepted the contention of the accused and allowed the appeal and acquitted vide judgment dated 17.11.2005.
8. Being aggrieved by the same, the complainant filed this appeal before this Court.
9. Learned counsel for the appellant strenuously argued that the accused even though received the notice served through ‘Under Certificate of Posting’, he has not replied to the legal notice issued by the complainant. Even after the evidence of the PW.1, the accused has not entered the witness box and gave any rebuttal evidence. Even the issuance of cheque and signature was not denied by the accused. Even otherwise, the cheque was dishonored not for material alteration but for the reason that the account was closed by the accused. Therefore, the trial Court rightly accepted the contention of the appellant and convicted the accused, but the Appellate Court committed error in accepting the appeal and acquitting the accused which is not correct. Therefore, prayed for allowing the appeal.
10. In support of the contention, the learned counsel also relied upon the judgment of the Hon’ble Kerala High Court in the case of Bhaskaran Chandrasekharan vs. Radhakrishnan reported in 1998 CRI.L.J.3228.
11. Per contra the learned counsel for the respondent argued that the accused taken 3 grounds in the cross examination of the PW.1-complainant. First of all he has denied the issuance of cheque, date of the cheque and also signature though, the complainant got marked the Ex.P1-cheque, but the signature of the accused was not been marked even though the same was denied by the accused. The other contention taken by the accused was there is material alteration in the date of cheque as the year of the cheque is altered by striking of the No.19 and the next third Number i.e., 9 has been corrected as 2, the 8 is still left as it is and thereby the accused tried to alter the year from 1998 to 2002. The same was not proved by the complainant by examining and referring the matter to the handwriting expert. Another contention taken by the accused is that there is no transaction between them. There is no illegal liability of debt payable to the complainant. The same was not mentioned by the complainant in the notice and also in the complaint. Therefore, he has supported the judgment of the First Appellate Court and contended that there is no ground to interfere with the judgment of Appellate Court. Hence, prayed for dismissing the appeal.
12. Upon hearing the arguments of both the learned counsel, perused the evidence on records as well as judgment of both the Courts below, as already stated in the para supra, the accused is first of all denied issuance of alleged cheque, he also denied the date and his issuance of cheque and signature including the handwriting. Even the accused also disputed the date and its material alteration, apart from the transaction between them.
13. On perusal of the evidence of the PW.1, the complainant who himself examined as PW.1 even in the chief examination the complainant stated that the accused gave cheque dated 31.01.2002 as per Ex.P1. The cheque was dishonored with an endorsement of the account closed as per Exs.P2 and 3 and he has got issued the notice as per Ex.P4 and it was returned and claimed, he has marked Ex.P5 unserved, post envelope Exs.P6 and 7 postal receipts for having sent notice by the registered post and under certificate of posting. In the examination-in-chief, he has stated that he has supplied 85 bags of parchment coffee seeds containing 50 kg in each bag and discharging the said amount, the accused got issued the cheque. In the cross- examination the accused denied the transaction in respect of parchment coffee seeds of 85 bags said to be supplied by the accused and also denied the signature and handwriting in the cheque. The accused also taken the contention that there is material alteration in the year of the cheque from 1998 to 2002, the same was denied. However, PW.1 admitted that there is no initial of the accused below the said date. The accused also taken the contention that the complainant somehow got the cheque and presented to the bank. It is also contended that the accused in the cross-examination that the account of the accused has been closed in the year 1998 itself. On perusal of the evidence, the accused has not entered into the witness box for leading any evidence on his behalf.
14. Learned counsel for the respondent-accused contended that the complainant failed to prove the case by discharging his primary duty to prove the legal liable debt from the accused. Hence, the question of leading the evidence of defence does not arise.
15. On the background of the contentions and on perusal of the first contention taken by the accused in respect of the transaction is said to be held between the accused and the complainant. Though the complainant stated in his evidence that the he has supplied 85 bags of parchment coffee seeds for the value of Rs.1,63,000/- on credit basis and the accused gave the cheque to discharge the debt in favour of complainant, but the accused denied the same on the ground that no document produced in respect of transactions and supply of 85 bags of parchment coffee seeds by marking any documents before the Court.
16. On perusal of the records, absolutely, there is no documents produced by the complainant before the trial Court to show that there was a business transaction had between the accused and the complainant and he has supplied 85 bags of parchment coffee seeds and also the date of transaction between them.
17. Even on perusal of the Ex.P4 and 5, the legal notice reflects only the cheque said to have been issued by the accused, it does contains any transactions that he has supplied coffee seeds of 85 bags to the accused and accused gave cheque to the complainant to discharge the debt.
18. Therefore, when the complainant failed to prove that there was legally liable debt payable to the complainant, the presumption in favour of complainant is not available, therefore, the accused giving rebuttal evidence by way of defence does not arises, when there is no legally liable debt recovered from the accused, for discharging the cheque issued therefore, on this ground the complaint failed to prove the case.
19. Another contention taken up by the learned counsel for the accused, in respect of material alteration on Ex.P1-the cheque, which was shown the date as 31.01.2002. The accused disputed the issuance of cheque and also there is material alteration by the complainant by striking out the figure 19 and making correction in number 9 as 2, 8 is left as it is and added 02 by the complainant wherein the accused stated that the year of the cheque was 1998, the same was altered by the complainant as 2002. In this aspect the learned counsel for the complainant contended that the cheque was dishonored only for the reason that the accused have closed account and not for the material alteration and the issuance of the cheque was not denied and in support of his case, he has relied upon the judgment of division bench Hon’ble Kerala High Court, Division Bench in the case of Bhaskaran Chandrasekharan Vs. Radhakrishnan reported in 1998 CRI.L.J.3228.
20. On perusal of the judgment of Hon’ble Kerala High Court, Division Bench, it has held as under:
“Negotiable Instruments Act (26 of 1881), Ss.87,118(b) – Material alteration in cheque – Issuance of undated cheque by drawer – No dispute regarding signature, name and amount shown in cheque – Insertion of date in cheque by payee holder of cheque in due course – Can be presumed as inserted with implied consent of drawer of cheque – Presumption not rebutted by drawer – Insertion would not amount to material alteration in cheque rendering cheque void.
21. On perusal of the fact of the said case which shows the issuance of the cheque and signature of the cheque has been not disputed by the accused except taking contention, the cheque was undated cheque. The date was inserted by the complainant. But, the fact of the case in hand defers from the case of Kerala High Court, here in this case the date of cheque has been altered which was also admitted by the complainant that there is no signature of accused below the date. On bare perusal of the date as naked eye, it clearly depicts the number 19 has been striked out, the third number 9 has been altered as 2, fourth number 8 has been left as it is and added 02 after the 8. On perusal of the year clearly depicts the year as 2802. There is a clear alteration of the year on the cheque which was made as 2002 instead of 1998. As per Section 87 of Negotiable Instrument Act which reads as follows:
“87. Effect of material alteration. – 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”
22. In this regard Hon’ble Apex Court in the case of Seth Loonkaran Sethia vs Ivan E. John reported in AIR 1977 SC 336 held that:
“A material alteration, is one which varies the rights, liabilities or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed.”
23. The Kerala High Court in the case of Ramachandran vs. Dinesan reported in 2005(1) acquittal 531 in the similar case it was held:
“Negotiable Instruments Act,1881 – Sections 87 and 138 – Dishonour of cheque – Conviction by Courts below – Revision – Defence plea of material alteration in cheque – Petitioner accused was alleged to have issued cheque for Rs.1,25,000/- for repayment of loan – Word “1” appeared to have been added subsequently and even last figure ‘0’ was also added subsequently – Any change in a written instrument which changed legal identity or business character of instrument either in its terms or in legal relation of parties to it would be a material alteration – Instrument would be rendered void and no criminal prosecution could be sustained on such cheque – Conviction was liable to be set aside”.
24. Learned counsel for the respondent also relied upon the judgment of this Court reported in ILR 2006, Kar 3111 in the case of B. Krishna Reddy vs. B.K.Somashekara Reddy, it is held that:
“NEGOTIABLE INSTRUMENTS ACT, 1881- SECTIONS 87, 138-MATERIAL ALTERATIONS-ACCOUNT BEARING A PARTICULAR A/C NO. CLOSED-
Complainant altered the account number and presented to the bank for encashment-Bank returned the cheque with an acknowledgment “referred to the drawer”. Trial Court acquitting the accused-whether proper-HELD-If the endorsee were to make an alteration, the liability of the endorsee were to make an alteration, the liability of the endorser is discharged. It is mandatory that in order to attract prosecution under Section 138 of N.I.Act there should be any debt or legal liability. In view of admitted material placed on the part of PW1, the instruments has become void in law-therefore, no acts in law under Section 138 of N.I.Act could live. The acquittal of the accused is sound and proper.
Appeal dismissed.”
25. The judgment of the Hon’ble Apex Court as well as the High Court of Kerala and judgment of this Court stated above, it is clear that when there is material alteration of the date without consent of the accused, no prosecution can be sustained against the accused. In this regard, the complainant not chosen to refer this cheque-Ex.P1 to the handwriting expert to prove the signature of the accused and also in respect of contention that there was no material alteration of the date in the cheque and complaint failed to prove the issuance of alleged date of the cheque as alleged by the complainant.
26. Other contention of the accused was the account in the Bank has been closed in the year 1998 itself, though the accused not produced any documents to show that the account which has been closed in the year 1998 itself. But the year of the cheque itself shows as 1998 and the endorsement Exs.P2 and 3 only shown dates of its dishonour, but not mentioned what was the date of account which came to be closed and even though the accused not produced any documents that the account was closed in the year 1998, but the cheque itself shows the year as 1998 which was altered as 2002. Therefore, the question of rebutting evidence by the accused does not arise when the complainant himself failed to prove the date of the cheque and signature and legally liable debt. The question of considering the account was closed in the year 1998 does not arise.
27. It is also brought to the notice of this Court by the counsel for the appellant that the accused filed application for summoning the witness on his behalf was rejected. The order sheet also depicts that the accused made request to examine the manager of the bank as defence witness, but the trial Court rejected his application and proceeded to pass the judgment against the accused. Therefore, on perusal of entire evidence and the judgment of the Appellate Court as well as the trial Court, the First Appellate Court after re-appreciating the evidence rightly acquitted the accused. But the trial Court not considered the factual aspect in respect of material alteration and proceeded to pass the judgment against the accused which is not correct. Therefore, I do not find any illegality in the judgment of the appellate Court which called for any interference by this Court in the appeal jurisdiction. Therefore, I hold that the appellant-complainant failed to prove the case against the accused for the offence under Section 138 of NI Act. Therefore, the appeal deserves to be dismissed.
Accordingly, the appeal is dismissed.
Sd/- JUDGE GBB