Delhi District Court
M/S Space Tours & Travels vs . Ms. Sarika Rara (Proprietor, on 17 July, 2013
IN THE COURT OF SH. DHEERAJ MITTAL: M.M-02 (N.I.ACT):
SOUTH-EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
M/s Space Tours & Travels Vs. Ms. Sarika Rara (Proprietor,
M/s Mehul Tour & Travels)
CC No.1457/1/10
U/s 138 Negotiable Instruments Act, 1881
1. Unique Identification : 02403R0000612010
Number of the case
2. Name of the complainant : M/s Space Tours & Travels,
(A Unit of M/s Connect Point
Travels (P) Ltd.) through
Shri Hemant Kumar Narval,
Authorized Officer,
312, Mansarovar Building,
90,
Nehru Place,
New Delhi -110019
3. Name of the accused , : Ms. Sarika Rara,
parentage & residential Sole Proprietor of M/s Mehul
address Tours & Travels,
F/122-123, 1st Floor,
Mahalaxmi Chambers,
Rajender Marg,
Bhilwara - 311001
(Rajasthan)
4. Offence complained of or : U/s 138 of Negotiable
proved Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and
claimed trial
6. Final order : Acquitted
7. Date of judgment/order : 17.07.2013
Date of Institution : 02.01.2010
Date of Reserving Judgment/Order : 01.07.2013
Date of Pronouncement of Judgment/Order : 17.07.2013
JUDGMENT
Brief reasons for the decision are: -
1. This is a complaint filed u/s 138 of Negotiable Instruments Act, 1881 r/w Sec. 142 Negotiable Instruments Act, 1881 (hereinafter referred to as N.I. Act in short).
2. Brief facts of the case as per complainant are:
The complainant is a unit of M/s Connect Point Travels (P) Ltd. Company and carrying on its business of booking tickets. The present complaint has been filed by the complainant through Shri Hemant Kumar Narwal, who has been authorized by the complainant vide resolution dated 27.11.2009 Ex. CW-1/8. The accused Sarika Rara being sole proprietor of M/s Mehul Tours & Travels booked tickets for the various tours being organized by her firm from the complainant during the period 3rd April, 2008 to 5th December, 2008. After adjusting the amount paid by the accused, a sum of Rs.1,19,400/- was found due against the accused for the payment of booked tickets for the aforesaid period. In discharge of this liability, accused issued a cheque bearing no. 354108 dated 15.08.2008 amounting Rs.1,19,400/- (Rupees One Lac Nineteen Thousand Four Hundred only) drawn on Punjab National Bank, Bhilwara branch, Rajasthan (cheque in question Ex.
CW-1/1). The complainant has alleged that when this cheque was presented for encashment for the first time, the same got dishonoured and when the complainant informed the accused regarding the dishonourment of the cheque,the accused keep on lingering the matter and took time from the complainant for presenting the cheque again. When the accused keep on delaying the payment of the cheque in question, the complainant met the accused in the first week of September, 2009 and the accused revalidated the cheque under her signatures by changing the date from 15.08.2009 to 15.09.2009. When the complainant presented the revalidated cheque, the same got bounced on account of funds insufficient vide returning memo dated 25.11.2009 Ex. CW-1/2. Upon bounching of the cheque, complainant sent a legal notice dated 30.11.2009 to the accused and demanded the cheque amount, but when the accused did not pay the cheque amount to the complainant, the complainant filed the present complaint case.
3. The accused was summoned for the offence u/s 138 N.I. Act by my Ld. Predecessor vide summoning order dated 15.03.2010.
4. Notice u/s 251 Cr.P.C. was served upon the accused on 06.08.2011, to which she pleaded not guilty and claimed trial. In her plea of defence, the accused took the defence that the complainant has altered the date from 15.08.2008 to 15.09.2009 and forged her signatures beneath the new date.
5. AR of the Complainant/CW-1 Shri Hemant Kumar Narwal led his post-notice evidence by way of adopting the pre- summoning affidavit Ex.CW1/A, deposed on the same lines as in the complaint and relied upon the following documents:-
(i) Cheque no. 354108 dated 15.09.2009 amounting Rs.
1,19,400/- (Rupees One Lac Nineteen
Thousand Four Hundred Only) Ex.CW1/1.
(ii) Bank returning memo dated 25.11.2009 Ex.CW1/2.
(iii) Copy of legal Notice dated 30.11.2009 Ex.CW1/3.
(iv) Postal receipt of dispatch Ex.CW1/4, UPC
dispatch receipt Ex.CW1/5, acknowledgment card
Ex.CW1/6 and
statement of account Ex.CW1/7.
(v) Extract of meeting of Board of Directors whereby
Shri Hemant Kumar Narwal is authorzed
Ex.CW1/8.
The complainant did not examine any other
witness in his evidence and voluntarily closed his
evidence by way of statement recorded on 22.10.2011.
6. The statement of the accused namely Sarika Rara was recorded u/s 313 Cr.P.C. on 27.01.2012, wherein all the incriminating evidence was put to her. The accused examined one defence witness namely Sh. Deepak Jain, handwriting expert as DW-1.
7. I have heard the submissions from both the Ld. Counsel for the parties, considered the written submissions filed by the complainant and perused the record.
In the present case, the main defence of the accused is that the cheque in question is void due to the material alteration on the cheque. The accused stated that the complainant has manipulated the date on the cheque from 15.08.2008 to 15.09.2009 and forged her signatures beneath the cutting of the date. The accused stated that she never consented for the change of date or she did not revalidate the cheque at any point of time. The counsel for the accused stated that in view of section 87 of N.I. Act, due to material alteration of date and forged signatures, the cheque in question is void and therefore, the accused cannot be held liable for the offence u/s 138 N.I. Act. The counsel further stated that DW-1 Shri Deepak Jain, Handwriting Expert has deposed in favour of the accused and has tendered his report in his evidence which clearly shows that the signatures beneath the cuttings on the date are not of the accused.
8. On the other hand, the counsel for the complainant stated that the accused has herself revalidated the cheque by changing the date from 15.08.2008 to 15.09.2009 and therefore, she is liable for the offence u/s 138 N.I. Act because the cheque has been dishonoured on account of funds insufficient. The counsel further stated that there is no bar under the N.I. Act to revalidate the cheque and the drawer of the cheque can revalidate the cheque. He further stated that the evidence of DW-1 Shri Deepak Jain, Handwriting Expert is not reliable and the same should be discarded. The counsel has relied upon the following Judgments/citations :-
i) M/s Amir Chand Jagdish Kumar (Exports) Ltd. Vs. M/s Hindustan Hing Supplying Co. DoD 26.11.2010 Delhi High Court
ii) Veera Exports Vs. T. Kalavathy DoD 02.11.2011 Supreme Court
iii) Ishwari Prasad Mishra Vs. Mohammad ISA 1963 AIR 1728
iv) Balkrishna Das Agarwal Vs. Smt. Radha Devi & Ors.
AIR 1989 All. 133.
9. As noted above, the defence of the accused is that the instrument has been void due to material alteration of date and her forged signatures on the cheque. Section 87 of N.I. Act is relevant and the same is reproduced herein : -
Section 87 - Effect of material alteration " Any material alteration of a negotiable instrument renders the same void as against anyone who is 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............."
It is settled law that the change of date on the cheque is material alteration and if it is found that the same has not been consented by the drawer, that makes the instrument void. It has been held in the Judgment of 'Veera Exports Vs. T. Kalavathy DoD 02.11.2011 Supreme Court' that it is a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of drawer and it requires the evidence to prove the aforesaid question whenever it is disputed.
10. It is noteworthy that in the present case, the accused has taken the defence that date on the cheque has been altered without her consent from the very beginning.
In her plea of defence recorded after framing of notice u/s 251 Cr. P.C, the accused specifically took the plea that the date on the cheque has been altered by the complainant himself and forged her signatures below the signatures. To prove this defence, the accused has examined DW-1 Shri Deepak Jain, Handwriting Expert who tendered his report Ex. DW-1/A in his evidence and stated that the disputed signatures (signatures below the cutting of the date) and the admitted signatures (signatures at the bottom of the cheque) are not of the one and the same person i.e. accused Sarika Rara. Therefore, the witness deposed that the signatures at the cuttings of the date are not of the accused. The counsel for the complainant cross examined the witness at sufficient length with the help of Shri Syed Fazal, Forensic Expert. I have gone through the entire evidence as well as report of DW-1, but I do not find any discrepancies in his evidence so to reject / disbelieve the evidence of handwriting expert. The counsel for the complainant stated that the Hon'ble High Court of Delhi has rejected the report of Shri Deepak Jain in the case titled as 'M/s Amir Chand Jagdish Kumar (Exports) Ltd. Vs. M/s Hindustan Hing Supplying Co. DoD 26.11.2010 Delhi High Court'. In this Judgment, the Hon'ble High Court has rejected the report of Shri Deepak Jain by citing certain reasons/discrepancies in the report. But in the present case, the complainant could not point out any material discrepancy in the evidence/report of DW-1 so to reject his evidence/report. It is settled law that each and every case has to be decided on the basis of material/evidence on record and merely because the Hon'ble High Court has rejected the report of Shri Deepak Jain in a particular case, his report/evidence cannot be rejected in this case in the absence of material discrepancies in his evidence/report. The evidence of DW-1 cannot be looked with suspicion merely because this witness has been examined by accused in her defence. The evidence of a particular witness has to be evaluated on the basis of quality of the evidence and the same cannot be rejected/discarded merely because the evidence/witness has come from the accused side. Accused has a right to produce evidence in her defence to prove her innocence.
11. It is important to note that even though the accused has taken the defence of manipulation of the date and forging of her signatures by the complainant from the very beginning, the complainant did not take any steps to bring any evidence on record during his evidence to prove that the signatures on the cuttings on the date are of the accused and she herself has revalidated the cheque. In view of the plea of defence taken by the accused, it was the duty of the complainant during his evidence to prove that the signatures on the cuttings are of the accused, but it is a matter of record at that time i.e. during his complainant evidence, the complainant did not take any steps to examine any other witness to prove that the signatures are of the accused. Moreover, the complainant has alleged in para no.12 of his complaint that the accused revalidated the cheque under her signatures, but the complainant did not specify the name of particular person in whose presence the accused revalidated the cheque.
12. In the given facts and circumstances, it can be held that the accused has succeeded in proving that the cheque was not revalidated by her and the signatures below the cutting on the date are not of the accused. Thus, the instrument i.e. the cheque in question has become void by virtue of section 87 of N.I. Act. The citations relied upon by the complainant are of not much help to the complainant in the given facts and circumstances of this case.
13. Consequently, accused is entitled to acquittal and hence, accused is acquitted of the offence U/s 138 N I Act.
Pronounced in the open court (Dheeraj Mittal) on 17.07.2013 M.M.(N.I. Act)-02:SED: Saket Courts, New Delhi