Himachal Pradesh High Court
Sita Ram vs Chaman Lal on 21 March, 2025
Neutral Citation No. ( 2025:HHC:7028 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 267 of 2023 Reserved on : 11.03.2025 Date of Decision: 21st March, 2025 Sita Ram ...Petitioner Versus Chaman Lal ...Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioner : M/s Ravinder Sigh Chandel, Pooja Thakur and Diksha Denta, Advocates.
For the Respondent/State. : Mr. I.S. Chandel, Advocate. Rakesh Kainthla, Judge The petitioner has filed the present petition against the order dated 28.02.2022 passed by learned Additional Chief Judicial Magistrate, Theog in Criminal Case No. 326 of 2015 titled Chaman Lal versus Sita Ram, vide which, the application filed by the petitioner (accused before the learned Trial Court) under Section 45 of Indian Evidence Act for sending the cheque to Chemical Examiner/Forensic Expert was dismissed. (Parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
Neutral Citation No. ( 2025:HHC:7028 ) hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present petition are that the respondent/complainant filed a complaint before the learned Trial Court against the petitioner/accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short 'NI Act'). It was asserted that parties were known to each other. The complainant is the sole proprietor of Chaman Trading Company. The accused purchased the construction material from the complainant, and he issued a cheque of ₹4,90,000/- to discharge his liability. The complainant presented the cheque, which was dishonoured. The accused failed to pay the amount despite the receipt of the notice; hence, the complaint was filed before the learned Trial Court against the accused for taking action as per the law.
3. Learned Trial Court put the notice of accusation to the accused. The statement of the complainant was recorded on 27.10.2017.
4. The accused/applicant filed an application (Annexure P3) asserting that the complainant had tampered with the cheque 3 Neutral Citation No. ( 2025:HHC:7028 ) issued to him as a security. The accused had made the payment of ₹1,90,000/- to the complainant. He demanded the cheque from the complainant, and the complainant replied that he had misplaced the cheque somewhere. The accused had filled the amount in the figure. He had also signed the cheque. The complainant filled the amount in words by himself. He tampered with the figure of ₹1,90,000/- and changed it to ₹ 4,90,000/-. The examination of the cheque by the Forensic Expert is essential to determine the alteration of the cheque; hence, it was prayed that the present application be allowed and the cheque be sent to the Forensic Expert.
5. The application was opposed by filing a reply taking preliminary objections regarding lack of maintainability and the accused having not come to the Court with clean hands. The contents of the application were denied on merits. It was asserted that the accused had never paid any amount to the complainant. It was specifically denied that the complainant had altered the figure '1' to '4' to read it as ₹ 4,90,000/- instead of ₹1,90,000/-. The application was filed without any basis; hence, it was prayed that the same be dismissed.
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Neutral Citation No. ( 2025:HHC:7028 )
6. The learned Trial Court held that the amount in the words was mentioned as ₹ 4,90,000/-, and the amount in the words will prevail in case of any difference in the words and the figures as per Section 18 of the NI Act. The accused admitted that he had issued a signed cheque; hence, the complainant had the authority to fill the amount. The signatures were not disputed, and a presumption under Section 139 of the NI Act applied to the present case. Even if it is proved that '1' was changed to '4', it will not have any impact on the pendency of the dispute before the learned Trial Court. Therefore, the application filed by the accused/applicant was dismissed.
7. Being aggrieved from the order passed by the learned Trial Court, the accused has filed the present petition asserting that the learned Trial Court erred in dismissing the application in a cursory manner without appreciating the facts, law and evidence. The cheque clearly shows that '1' was altered to '4'. This alteration is visible even to the naked eye. This constitutes a material alteration. The provision of Section 18 does not apply to the present case because there is no discrepancy in the words and the figures. The accused had a right to establish his defence. He had already put his case to the complainant, who denied it. 5
Neutral Citation No. ( 2025:HHC:7028 ) Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.
8. I have heard M/s Ravinder Singh Chandel, Pooja Thakur and Diksha Denta, learned counsel for the petitioner and Mr. I.S. Chandel, learned counsel for the respondent/complainant.
9. Mr Ravinder Singh Chandel, learned counsel for the petitioner, submitted that the learned Trial Court erred in dismissing the application. The accused had categorically asserted in his application that the amount of ₹ 1,90,000/- was altered to read as ₹4,90,000/-. This constituted a material alteration. Any material alteration in the cheque will make it bad. The accused had no other option but to request the Court to send the document for examination by the Forensic Expert. He relied upon the judgments passed in G. Sonamuthu vs. Barsha Beevi, 2013 (02) MAD CK 0167, G. Someshwar Rao versus Semineni Nageshwar Rao and anr in Criminal Appeal No. 1353 of 2009 decided on 29.07.2009, T Nagappa versus Y.R. Muralidhar in Cr. Appeal No. 707 of 2008 decided on 24.04.2008, Raj Kumar versus M/s Ram Krishan and ors, in Cr.MMO no. 255 of 2015 decided on 06.05.2016 and Saroj Kumari versus 6 Neutral Citation No. ( 2025:HHC:7028 ) Harminder in Cr.MMO no. 806 of 2023 decided on 05.12.2023 in support of his submission.
10. Ms. I.S. Chandel, learned counsel for the respondent/complainant submitted that the learned Trial Court had rightly dismissed the application. The amount was mentioned in the words as ₹4,90,000/- and any correction in the figures does not constitute a material alteration. Further, there is no evidence that this alteration was made at the instance of the complainant. Therefore, no fruitful purpose would be served by sending the document to a Forensic Expert. Learned Trial Court had exercised the jurisdiction vested in it properly and this Court should not interfere with the discretion exercised by the learned Trial Court while exercising the inherent jurisdiction under Section 482 of Cr.P.C; hence, he prayed that the present petition be dismissed. He relied upon the judgment passed in P.K. Rajan vs. K. Radhakrishnan and Anr, 2016 (4) CCC 249, and H.B. Bhagyalakshmi versus Smt. Cheluvamma, 2024 (1) CCC 701 in support of his submission.
11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7
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12. The learned Trial Court noticed the plea of the accused/applicant in para 8 that the cheque was issued only for a sum of ₹1,90,000/- the date and the amount in the figure were mentioned in the cheque but the amount was not mentioned in the words. Learned Trial Court held that when the amount in the words was mentioned as ₹4,90,000/-, any alteration in the figures would be immaterial. Mr. I.S. Chandel supported this reasoning by relying upon the judgment of the Kerala High Court in P.K. Rajan (supra). I am afraid that the reasoning of the learned Trial Court and the submission of Mr. I.S. Chandel, learned counsel for the petitioner, cannot be accepted in the present case.
13. It was laid down by Kerala High Court in Kunjamma Cheriyan v. Soloman, 2004 SCC OnLine Ker 81: (2005) 1 KLJ 221 that alteration in the figure of the cheque will constitute a material alteration. It was observed at page 223:
"6. Section 18 of the N.I. Act provides that the banker will honour a cheque based on the amount written in words. So, that is the material part of the cheque. The amount written in figures in Ext. P1 cheque was '11775'. It is discernible that the figures '11' has not been made simultaneously or continuously as figures 775 to make a figure 11775. Even if, it is ignored the amount mentioned in words was like (Eleven thousand and seventy-five only). If it is so taken there is a substantial difference between ₹ 11075/- and ₹ 11775/-. But in order to 8 Neutral Citation No. ( 2025:HHC:7028 ) make it in tune with the amount mentioned in figures namely, 11775/- the words (seven hundred) is inserted between (eleven thousand) and (seventy-five). Necessarily, this is an insertion or correction which requires an attestation by the drawer with his full signature. It is absent on the cheque. It is in these circumstances, PW2 has deposed that he would not have honoured the cheque even if, there was sufficient funds in the amount of the accused. Therefore, the conclusion of the court below that there is material alteration in the cheque cannot be said to be unjustified. It is also a probable conclusion. In such circumstances, I find no reason to reverse the acquittal."
14. Punjab and Haryana High Court also held in Om Parkash v. Subhash Chand, 2010 SCC OnLine P&H 1990 that the alteration in the figure constitutes a material alteration. It was observed:
"4. The learned trial Court has observed that it was proved on record that the cheque in question had been tampered with. In fact, initially, the cheque had been issued for ₹ 2500/- and the said amount has been subsequently altered to ₹ 2,52,500/- by adding the digit 25 in front of ₹ 2500/- with a different pen and ink.
5. In this regard respondent No. 1 examined a handwriting expert who had also opined that the cheque in question had been tampered with. The said fact in itself was sufficient to acquit the accused as the cheque in question had been pre- sented after material alteration. Thus, the trial Court while acquitting the respondent has given sound reasons."9
Neutral Citation No. ( 2025:HHC:7028 )
15. The term 'material alteration' was defined in Ramachandran v. K. Dineshan, 2004 SCC OnLine Ker 148 : (2005) 1 KLJ 269 as an alteration in the material part of a deed after execution. It was observed at page 271:
8. In Loonkaran Sethia v. Ivan E. John ((1977) 1 SCC 379: AIR 1977 SC 336), the apex Court had considered the effect of material alteration in the document. It was held as follows:
--
"If an alteration (by erasure, interlineation, or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound by it, who did not consent to the alteration, any obligation covenant, or promise thereby undertaken or made".
9. It was further held as follows:--
"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. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed".10
Neutral Citation No. ( 2025:HHC:7028 )
10. The principle laid down in that decision was followed by a Division Bench of this Court in Bhaskaran Chandrasekharan v. Radhakrishnan (1998 (1) KLT 881) it was held that alteration of the date in the cheque may be a material alteration. In this case, the amount written in the figures were corrected. That will amount to material alteration. So, I hold that there is a material alteration of the Exhibit P1 cheque.
16. It was further held that any material alteration in the cheque would make it void. It was observed:
"11. The next question to be considered is what exactly is the effect of material alteration. Section 87 of the Negotiable Instruments Act deals with the effect of material alteration. It reads as follows: --
"87. Effect of material alteration. - Any material alteration of a negotiable instrument renders the same void as against anyone 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.
Alteration by indorsee.- And any such alteration, if made by an indorsee discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of sections 20, 49, 86 and 125".
12. The basic principle of law is that any change in a written instrument which changes the legal identity or business character of the instrument, either in its terms or in the legal relation of the parties to it, is a material alteration and such a change invalidates the instrument against the person not consenting to the change. This principle of law is essential to the integrity and sanctity of contracts. By alteration, the identity of the instrument is destroyed. So, the effect of making a material alteration on a negotiable instrument without the consent of the party bound under it 11 Neutral Citation No. ( 2025:HHC:7028 ) is exactly the same as that of cancelling the instrument. The instrument is rendered void only against anyone who is a party thereto and not against anyone becoming a party subsequent to the alteration. If a person indorses an altered instrument without the knowledge of the alteration he may be liable to the indorsee. A person who accepts an altered instrument cannot absolve his liability on the acceptance on account of the previous alteration.
13. In Jawahar Trading Corporation v. Ramadas (1989 (2) KLT
932) this Court had considered the effect of material alteration of a negotiable instrument. It was held as follows:
--
"Any material alteration of a negotiable instrument renders the same void against anyone who is a party thereto at the time of making the alteration and does not consent thereto, unless, it was made in order to carry out the common intention of the original parties. Addition of parties to a contract is a material alteration. Adding stamps and signatures and corrections in signatures and writings are also material alterations. Failings of parties to raise specific pleas in that respect should not deter the Court from considering how the law should be applied to prove facts. The principle of law in this respect embodied in S. 87 of the Negotiable Instruments Act is essential to the integrity and sanctity of contracts. It is intended to prevent fraud and deter men from tempering with written securities. It is repugnant to the policy of law to permit the holder of a negotiable instrument to attempt a fraud of this kind with impunity. By the alteration, the identity of the document itself is destroyed. To hold one liable under the circumstances is to make him liable for a contract to which he never agreed. The burden is on the plaintiff in such circumstances to show that the alteration was not improperly made. An alteration which varies the rights, liabilities or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument 12 Neutral Citation No. ( 2025:HHC:7028 ) as originally expressed, or reduces to certainty some provision which was originally unascertained is a material alteration. To make an alteration material it is not necessary that it should adversely affect the party who raised that plea".
14. It is true that the decision was rendered in a suit filed by the holder of the Cheque against the drawer. That principle is applicable to criminal cases also. Under Section 138 of the Negotiable Instruments Act to make a person criminally liable the cheque must have been one issued in discharge of whole or part of debt or liability. Further, the cheque should have been dishonoured for insufficiency of funds or that it exceeds the amount arranged to be paid from the account. Still further, the debt must be a legally recoverable debt. Explanation to Section 138 makes it very clear. It reads as follows:--
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-
xxxxxxxxx Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability."
15. When the document itself is a void one, it cannot be held that any legally recoverable debt is due under that document. Since the explanation to Section 138 of the Negotiable Instruments Act defines the expression "debt or liability" unless it is established that the debt in question is a legally enforceable one it would not attract the consequence provided under the Section even if it is returned unpaid due to insufficiency of funds or the amount arranged to be paid from the drawers account by an agreement made with the Bank. Unless the condition set out in Section 138 of the Negotiable Instruments Act are satisfied, no criminal liability can be fastened on the accused. So, if there is any material alteration in the cheque which renders it void, no criminal prosecution can be launched based on such a cheque. The Courts below had not considered this material aspect while holding that the 13 Neutral Citation No. ( 2025:HHC:7028 ) revision petitioner is guilty of an offence under Section 138 of the Negotiable Instruments Act. Since the cheque itself is an invalid one, no prosecution is possible under such a document and the revision petitioner is entitled to an acquittal.
17. It was held in Narayan Prasad Rai v. Ghanshyamlal, 1960 SCC OnLine MP 141: ILR 1960 MP 999: AIR 1961 MP 62 that any alteration in the amount will be a material alteration, which will make the instrument void. It was observed at page 1002:
"Section 87 of the Negotiable Instruments Act is as follows:
"Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto.
The plain meaning of this section, as it stands, is that if any material alteration is found in a negotiable instrument, the instrument itself becomes void and the party basing its claim upon it is precluded from claiming anything. This result follows irrespective of the fact whether the party concerned was responsible for the alteration or whether it was made by someone else without his consent or knowledge. This interpretation of the provision is hard on the innocent holder of the instrument. On the other hand, Shri R.K. Pandey contends that section 87 is attracted only if the alteration has been proved to have been made by the holder himself and this fact must be pleaded and proved by the defendant. He went to the length of saying that in the instant case even if the alteration had been made by the minor's next friend or guardian, it would not affect the claims of the minor. This interpretation is obviously too narrow and is not justified by the wording of section 87.14
Neutral Citation No. ( 2025:HHC:7028 ) In our opinion, the correct interpretation of section 87 of the Negotiable Instruments Act is that the alteration which has the effect of making the instrument void should have been brought about by the plaintiff or by anyone with his consent or on account of his negligence. If the alteration is brought about by an accident, or by some stranger who came in possession of the instrument in an unauthorized manner, then the instrument would not be rendered void."
18. It was further held that the burden to prove that the alteration was made by the signatory is upon the holder of the instrument. It was observed:
"Shri R.K. Pandey contended that it was necessary for the defendant to plead that the alteration was brought about by the plaintiff himself or by someone with his consent. In the absence of such pleadings, no relief should be granted to the defendant on the ground that the instrument has been materially altered. We find that the law on the point is just the contrary, as would appear from the following passage occurring in Bhashyam's Negotiable Instruments Act (Tenth Edn., 1956) at page 452:
"Where the instrument appears to be altered, it is incumbent upon the plaintiff (i.e. the holder) to show that the alteration is not improperly made, and the presumption in the case of negotiable instruments is that the alteration was made subsequent to the issue of the instrument; while in the case of deeds, etc., the presumption is the other way. Where a bill appears to have been altered, or there are marks of erasure on it, the party seeking to enforce the instrument is bound to give evidence that it is not avoided thereby."
The burden of pleading or proving how the alteration came in the instrument is thus on the plaintiff. In Petamber Manik-Jee v. Motee-Chund Manik-Jee [(1836-37) 1 Moo IA
420.] the following observations were made regarding the burden of proof in such cases:
15
Neutral Citation No. ( 2025:HHC:7028 ) "If a plaintiff relies on a bond in this country, or any other instrument, which appears to have been altered, the Court will not receive it, or act upon it, till it is most satisfactorily proved by all the subscribing witnesses at the least, and other evidence, that alteration was made antecedently to Signature." The obvious implication of these observations is that if no such proof is forthcoming, the alteration shall be presumed to have been made after the instrument was executed. To the same effect is the following passage in Mst. Khoob Conwur v. Baboo Moodnarain Singh [(1861-64) 9 Moo IA 1.].
"It may be conceded chat, in an ordinary case, the party who presents an instrument, which is an essential part of his case, in an apparently altered and suspicious state, must fail, from the mere infirmity or doubtful complexion of his proof, unless he can satisfactorily explain the existing state of the document."
Although their Lordships held that the presumption may be rebutted by the appearance of the document itself, but the principle laid down obviously is that he who produces an altered document must prove how the alteration was made. The same view has been consistently taken by this Court. In Kanhayalal v. Sitaram [20 NLR 76.] it was held that a material alteration made by, or with the consent of, one party, but without the consent of the other party, makes the instrument void and disentitles the party responsible for the alteration from enforcing it. The Court observed in that case that where the plaintiff relies upon an altered or suspicious instrument "the law casts a heavy onus on him to explain the alteration and to show when it was made". The following observations from Halsbury's Laws of England, Volume 10, sections 764 and 765, at page 431, were relied upon:
"An alteration made while the instrument is in the custody of one parry, not made with his knowledge or consent, has the same effect in avoiding the instrument 16 Neutral Citation No. ( 2025:HHC:7028 ) as if made by him, on the principle that he who has the custody of an instrument made for his benefit is hound to preserve it in its original state."
In Pachkodi's case (supra) the same view has been taken regarding the burden of proof by observing that:
"These documents were altered in his possession and were produced from his custody. He had to explain when and how the alteration was made."
We have no doubt that the burden of proving how the alterations were made in the document lies on the plaintiff and in the absence of any proof, it should be presumed that they were made by him or by his next friend, who was in custody of the document. The view which we have taken does not go against the Madras decisions relied upon by the appellant. Although the single Judge had stated his conclusion somewhat widely, the Division Bench definitely concluded that the instrument would be saved from becoming void only if the material alteration was made by a stranger without the consent of the holder. In that case, the natural father, who was suspected to have made the changes, was a stranger inasmuch as the pro-note was in favour of the adoptive father and the adoptive mother was acting as the legal guardian. In the instant case, the pro- note has all along been in the custody of the minor plaintiff's father, who also acted as the next friend of the minor when the suit was filed. Under these circumstances, according to the statement of law quoted from Halsbury's Laws of England in paragraph 13 above, the presumption that the alteration was made by the plaintiff's father or by someone with his consent had to be rebutted by the plaintiff."
19. It was held in C. Sonamuthu v. R. Barsha Beevi, 2013 SCC OnLine Mad 386: (2013) 1 MWN (Cri) DCC 113 that any material alteration in the instrument will make it void. It was observed: 17
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16. At this juncture, this Court aptly quotes the decision, T. Kalavathi v. Veera Export, 2002 BC 1247 Mad., wherein it is held that "where material alteration made by the Accused in Negotiable Instruments Act, after the expiry of the period of validity, it would render the said instruments void, hence the Complaint on the basis of invalid, Negotiable Instruments Act could not be maintained."
17. The effort of Section 87 of the Negotiable Instruments Act is that such document is void and as such non-est. The technical defence or absence of a plea should not drive the Court on such occasion, especially with reference to the contention and evidence.
18. Ordinarily, any material alteration of a Negotiable Instrument renders the same void as against anyone 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. Any such alteration if made by an endorsee discharges his endorser from all liable to him/her in respect of the consideration thereof in the considered opinion of this Court.
20. It was further held that the accused is to be granted a reasonable opportunity to prove his defence. It was observed:
"23.A. At this stage, this Court deems it appropriate to cite the decision of this Court in R. Jagadeesan v. N. Ayyasamy, 2010 (1) MWN (Cr.) DCC 97: 2010 (1) CTC 424: Crl. R.C. 49 of 2009 and K. Meignanavel, 2010 (1) LW (Crl.) 165 (Crl.R.C.50/09) at Special Pages 167, 168 & 169, in paragraph Nos. 6 to 10, it is observed and laid down as follows:
"6. There can be no denial of the fact that the Accused needs to be afforded a fair trial to exhaust all the defences available to him. Fair trial is the sine qua non of Criminal jurisprudence and the same has been recognised as a fundamental right under Article 21 of the Constitution of India. To prove that the 18 Neutral Citation No. ( 2025:HHC:7028 ) handwriting was not made by him or that the signature was not made by him, the Accused can very well request the Court to forward the document for expert opinion...."
21. It was held that alteration in the Negotiable Instruments Act if it changes its legal character is a material alteration. It was observed:
"24. An alteration of a Negotiable Instrument is material if it changes its legal character or its scope as means of evidence, in the considered opinion of this Court. Integrity and sanctity of contracts are to be preserved and the object is to prevent fraud and deter persons from tampering with the written instruments. Where an instrument appears altered, it is the primordial duty on the part of Plaintiff to show that the alteration was not improperly made as per the decision in Jayantilal Goel v. Zubeda Khanum, AIR 1986 AP
120. xxxxxx
26. In law, the following are declared to be Material Alterations:
(i) the date, (ii) the sum payable, (iii) the time of payment,
(iv) the place of payment, (v) the addition of a place of payment mentioned by the accepter without the accepter's consent."
22. Thus, any alteration in the amount mentioned in the figures will make it a material alteration.
23. It was submitted that the amount has been correctly mentioned in the words, which would prevail over the amount mentioned in the figures as per Section 18, however, this submission will not help the complainant in the present case. The 19 Neutral Citation No. ( 2025:HHC:7028 ) accused specifically asserted that he had not mentioned the amount in the words and had mentioned the amount of ₹1,90,000/- in the figure. It was held in C Sonamuthu (supra) that if any amount is mentioned in the figures, the mentioning of a different amount in the words will constitute material alteration. It was observed:
"36. Ordinarily, it matters small if the name of the payee different and the amounts were filled up on a subsequent point of time, subject to the Proviso of Section 118 of the Negotiable Instruments Act. In view of the specific stand taken by the Respondent/Accused in Crl.M.P. No. 526 of 2012 (Petitioner) that she issued the Cheques and filled the figure as Rs. 50,000/- and that the amount in words were not written by her and that the Cheques her signature and the figure amount of Rs. 50,000/- were there, etc., and also that in view of the categorical plea taken by her that the figure of Rs. 50,000/- was changed as Rs. 5,50,000/- and other blanks were filled up by the Complainant, (although it is disputed by the Revision Petitioner/Complainant), this Court on the basis of the facts and circumstances of the case, opines that obviously a plea of material alteration in Ex.P1-Cheque was taken by the Respondent/Accused in regard to the figure of Rs. 50,000/- purposely changed as Rs. 5,50,000/- in order to provide an opportunity to the Respondent/Accused to prove her case in the manner known to law and in accordance with law since a valuable right of the Respondent/Accused cannot be taken away so lightly and does not find any infirmity or illegality in the order of the Trial Court while allowing the Crl.M.P. No. 526 of 2012 filed by the Respondent/Accused as the Petitioner to obtain an opinion of the Handwriting and Forensic Scientific Department Expert to find out whether the figure '5' is added before the figure of Rs. 50,000/- or not in the original 20 Neutral Citation No. ( 2025:HHC:7028 ) figure of Rs. 50,000/- and also to find out whether it is two different types viz., Rs. 50,000/- and '5' are separate type. Consequently, the Criminal Revision Petition fails.
24. In the present case, if any authority was conferred upon the accused, it was to fill the amount in the words as was mentioned in the figure. He had no authority to alter the figure and, thereafter, to mention the altered amount in words. Section 18 would have been material had the amount in the figure and the words been written by one person, but in the present case, these were stated to have been written by two different persons, and Section 18 will not apply to the present case.
25. In P.K. Rajan (supra), the amount was mentioned in the words, and the correction was carried out in the figures as per the amount mentioned in the words by the drawer of the cheque, which is not the case here. Therefore, no advantage can be derived from the cited judgment.
26. In H.B. Bhagya Lakshmi (supra), it was held that handing over a blank cheque authorises a person to fill it and it does not constitute a material alteration. There can be no dispute with this proposition of law. The cheque was not blank but contained the amount in figures as per the accused. Therefore, the authority to fill any amount did not vest in the holder because the 21 Neutral Citation No. ( 2025:HHC:7028 ) drawer had expressed his intention to draw the instrument for a specific amount, and the holder did not have the authority to enlarge that amount by making the alterations. Thus, both these judgments will not help the complainant.
27. It was laid down by the Hon'ble Supreme Court in G. Someshwar Rao v. Samineni Nageshwar Rao, (2009) 14 SCC 677 that the accused had a right to a fair trial and he is entitled to lead evidence to prove his innocence. It was observed:-
10. Indisputably, an accused is entitled to a fair trial which is a part of his fundamental right as guaranteed under Article 21 of the Constitution of India. The concept, however, cannot be put into a straitjacket formula. A court of law will have to consider each application filed by an accused praying for a comparison of his signature on a disputed document with his admitted signature on its own merits. No hard-and-fast rule can be laid down, therefore.
11. Section 243 of the Code of Criminal Procedure, 1973 provides for the grant of an opportunity to the defendant to lead evidence in his defence as also to file a written statement, sub-section (2) whereof reads as under:
"243. Evidence for defence.--(1)*** (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-
examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of 22 Neutral Citation No. ( 2025:HHC:7028 ) justice and such ground shall be recorded by him in writing:
Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice." The right of an accused under sub-section (2) of Section 243 of the Code of Criminal Procedure, 1973 is, thus, not an absolute one. He cannot take recourse thereto for the purpose of delaying the proceedings. An application filed by an accused must be for subserving the cause of justice and not for subverting the same. In Kalyani Baskar [(2007) 2 SCC 258 : (2007) 1 SCC (Cri) 577] this Court held as under: (SCC p. 262, para 12) "12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper 23 Neutral Citation No. ( 2025:HHC:7028 ) opportunities allowed by law to prove her innocence.
Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of a fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them."
12.KalyaniBaskar [(2007) 2 SCC 258 : (2007) 1 SCC (Cri) 577] has been followed by this Court in T. Nagappa [(2008) 5 SCC 633 : (2008) 2 SCC (Cri) 677] opining: (SCC p. 636, para 8) "8. An accused has a right to a fair trial. He has a right to defend himself as a part of his human as also a fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure...."
28. The learned Trial Court erred in denying this right to the accused. Hence, the learned Trial Court failed to exercise a jurisdiction vested in it under the law and such an order is liable to be interfered with even in the exercise of inherent jurisdiction of the Court.
29. Consequently, the present petition is allowed. The order dated 28.02.2022 is set aside. The application filed by the applicant/accused is allowed. The cheque is ordered to be sent to the Forensic Expert to examine whether there is any alteration in the amount in the figure of ₹4,90,000/- on deposit of expenses by the accused/applicant.
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Neutral Citation No. ( 2025:HHC:7028 )
30. The present petition stands disposed of and so are the miscellaneous applications if any.
(Rakesh Kainthla) 21 March,2025 st Judge (Saurav Pathania)