Kerala High Court
Naduvath Muhammadali vs Chittadath Kuttayi on 9 January, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 1ST DAY OF APRIL 2014/11TH CHAITHRA, 1936
CRL.A.No. 140 of 2004 (E)
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AGAINST THE ORDER IN Crl.L.P. 627/2003 of HIGH COURT OF
KERALA DATED 09-01-2004
AGAINST THE JUDGMENT IN CRA 308/2001 of SESSIONS COURT,
KOZHIKODE DATED 10-02-2003.
APPELLANT(S)/IST RESPONDENT/COMPLAINANT.:
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NADUVATH MUHAMMADALI, S/O.KUNHABDULLA HAJI,
NADUVATH HOUSE, IRINGATH AMSOM DESOM.
BY ADV. SRI.K.PRAVEEN KUMAR.
RESPONDENT(S)/APPELLANT/ACCUSED AND STATE.:
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1. CHITTADATH KUTTAYI, S/O.THOMAS,
KALLERAYIL HOUSE, THONDANADE AMSOM, KANHEM DESOM
KANHOM P.O. VELLAMUNDA TALUK, WYNAD DISTRICT.
2. STATE OF KERALA REP BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
R1 BY ADV. SRI.S.M.PRASANTH.
R2 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 01-04-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
amk
A.HARIPRASAD, J.
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Crl. Appeal No.140 of 2004
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Dated this the 1st day of April, 2014.
J U D G M E N T
Appeal filed under Section 378(4) Cr.P.C. Appellant is aggrieved by the reversal of judgment of the trial court by the learned Sessions Judge and acquittal of an accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881 ( in short 'the N.I Act').
2. Short facts are as follows :
Accused borrowed a sum of Rs.1,00,000/- from the complainant on 10-01-1998 agreeing to repay the same within two months. On 13-03-1998 the accused issued Ext.P1 cheque for Rs.45,000/- drawn on his account and that was intended to discharge part of the liability. It is also contended that the accused executed an agreement on a stamp paper regarding the balance amount of Rs.55,000/-. When the cheque was presented for collection, it was dishonoured due to insufficiency of funds in the account of the accused. A notice was issued to the Crl. Appeal No.140 of 2004 2 accused. He received the notice and sent a reply. In spite of lapse of the stipulated time, he did not repay the amount. Hence the prosecution was launched.
3. At the time of trial, PW1 was examined and Exts.P1 to P7 marked.
4. Heard the learned counsel for the appellant. There was no representation for the accused. I have carefully perused the records.
5. Learned Sessions Judge observed that the apparent tenor of the cheque would indicate that it was a document materially altered and therefore void under Section 87 of N.I Act. PW1 testified in accordance with the averments in the complaint. In cross examination, it was suggested to PW1 that father of the complainant had dealings with the accused in relation to a timber business. Accused has a specific case that Ext.P1 cheque was issued as security during the business Crl. Appeal No.140 of 2004 3 dealings between the complainant's father and the accused. It is also contended by the learned counsel for the accused that there was no privity of contract between the accused and the complainant. PW1 admitted that there was some land transactions between him and the accused. Court below found that on a close look at the cheque in dispute, it could be seen that the accused had put two signatures on the face of it with two different inks. Further, the amounts filled up in the cheque was in a different hand writing. There is no satisfactory explanation stated in the complaint about this aspect nor PW1 testified anything touching this aspect. It is settled law that an alteration of a negotiable instrument is material if it changes its legal effect or its scope as means of evidence; it is material if it might easily affect a party's substantial rights whether such result actually follows or not. The defence case that Ext.P1 cheque was issued as security is more probable. If the cheque Crl. Appeal No.140 of 2004 4 was issued as security, subsequent filling up of the amount and putting signature again will not make it a negotiable instrument. Therefore, the court below is justified in finding that the cheque suffers from a material alteration. Therefore, it makes the negotiable instrument void as there is no evidence to show that the accused consented to make such an alteration. I find no legal infirmity in the judgment of the court below.
In the result, the appeal is dismissed.
All pending interlocutory applications will stand dismissed.
Sd/-
A.HARIPRASAD, JUDGE.
//True Copy// P.A to Judge amk