Madras High Court
T. Kalavathy vs Veera Exports on 24 November, 2000
Equivalent citations: 2001(1)ALT(CRI)465
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. T. Kalavathy, the petitioner herein, challenging the proceedings for the offence under Section 138 of the Negotiable Instruments Act initiated by Veera Exports, Karur, the respondent/complainant has filed this petition wider Section 482, Cr.P.C. seeking to quash the same.
2. Though several grounds have been raised by the Counsel for the petitioner, I am of the opinion that this petition has got to be allowed on a single and short ground.
3. The case of the complainant, the respondent herein is as follows :
"The accused having business dealing with the complainant firm issued the eight cneques bearing various dates from 9.4.1995 to 30.4.1995 to the tune of Rs. 4,00,000/- in favour of the complaint firm towards the discharge of liability. On 15.5.1995 the complainant presented all the cheques, but the same were returned unpaid. The complainant intimated the same to the accused who, in turn, assured the complainant that she would pay the cheque amount after a period of six months. In the month of January, 1996, the accused expressed her inability to pay the cheque amount and altered the year of the cheques in the cheques mentioned above at 1996 and made necessary endorsement therefor. She further requested to present the cheques after a period of three months. Accordingly, the cheques were presented on 18.7.1996. But, the same were returned on 26.7.1996, with the endorsement "payment stopped". Then, the complainant issued notice demanding the cheque amount within 15 days. But, the accilsed sent a reply stating that she did not voluntarily make those relevant corrections with regard to the year and she was compelled to put the endorsement in those cheques under threat and coercion after she was kidnapped. Since the cheque amounts were not paid, the complaint was filed".
4. The case of accused/petitioner is as follows :
"During the business dealings, there were a number of transactions. These eight cheques bearing the dates from 9.4.1995 to 30.4.1995 were issued by the petitioner, but the amounts of those cheques were already paid. Since there was a misunderstanding between the petitioner and the accused, when the petitioner and her husband were coming out of the criminal Court at Karur on 12.7.1996, the persons attached to the complaint firm along with rowdy elements suddenly took them in an Auto forcibly and confined in a room and beaten. At that time, the petitioner was threatened and coerced to make alterations in those cheques by striking the year 1995 and writing as 1996. After they were released out, the petitioner filed a police complaint to the Karur Police and the said complaint was registered in Crime No. 964 of 1996 for offences under Sections 147, 342, 363 and 384, I.P.C. on 29.7.1996. Immediately thereafter, she also intimated the same to the Bank and requested them to stop the payment in regard to the cheques in question. In the meantime, the complainant firm presented the cheques on 18.7.1996 and the same were dishonoured on 26.7.1996. On receiving the notice dated 18.8.1996 from the complainant firm, the petitioner had given a detailed reply dated 23.8.1996 stating that the alterations were made not voluntarily but out of threat and coercion and with regard to that, police investigation is pending. Despite this, a complaint is filed. Since the said alterations were not made voluntarily, the complainant would not be entitled to file any complaint for the offence under Section 138 of the Negotiable Instruments Act."
5. According to the complainant, the year 1995 put in the cheques was altered into 1996. On the other hand, it is the case of the accused that the alterations were not made voluntarily. The question as to whether the alterations and the endorsement made by the petitioner out of threat and coercion cannot be decided by this Court, as it is a question of fact, more so when the police investigation is pending with reference to the offence of abduction and coercion. Therefore, the contention that the complaint is not maintainable in view of the involuntary alterations as a result of abduction, cannot be taken to be a valid one to hold that the complaint is not maintainable.
6. However, it is to be noticed that the alterations whether voluntary or not were made in the cheques not during the period of validity of six months but only after the cheque period has become expired. This relevant point deserves consideration for solving the issue raised in this case.
7. Even according to the complaint, the eight cheques bear the dates, namely, 9.4.1996, 13.4.1996, 17.4.1996, 18.4.1996, 21.4.1996, 24.4.1996, 27.4.1996 and 30.4.1996. Each cheque is to the tune of Rs. 50,000/-. Thus, the total amount of the cheques is Rs. 4,00,000/-.
8. There is no doubt in the fact that these cheques would be valid only for a period of six months from the date on which they are drawn as contemplated under proviso (a) to Section 138. Thus it is clear that these cheques bearing various dates of April, 1995 would be valid upto October, 1995.
9. In the complaint, it is admitted that these cheques were presented on 15.5.1995 for collection and the same were dishonoured as "funds insufficient". It is settled law that within a period of six months from thedates of thecheques the cheques can be presented any number of times. But, once the period of six months expired in October, 1995, the cheques cannot be represented.
10. Now, in the complaint, it is stated that in January, 1996, the accused expressed her inability to pay the cheque amounts and corrected the year 1995 as 1996 in all the cheques. In other words this correction has been made with a view to make the invalid cheques, the period of which has already expired in October, 1995 itself, valid for six months from January, 1996.
11. In this context, the only point that may arise for consideration in this case is as to whether the eight cheques bearing the various dates from 9.4.1995 to 30.10.1995, the period of which would expire on 9.1 0.1995 to 30.10.1995, could be revalidated by altering the dates in January, 1996, so as to give life for another six months from the dates of the cheques, namely, 9.4.1996 to 30.4.1996.
12. The short answer is, in my view, the alteration of the dates of the cheques which became invalidated due to the expiry of the stipulated period, which is material, cannot be permitted under law to make them validated.
13. Furthermore, in thiscase, the so-called alterations were not, admittedly, made during the permissible period of six months, namely, the period of validity, but those were made in January, 1996, that is after two months on expiry of the period of validity. Thus, it is clear that surgery of alteration was made after cheque became a dead letter and, as such, this alteration or correction cannot be construed to be a surgery, but it is nothing but post-mortem. Surgery can be only on the body of living person and not on the dead body. Operation on the dead body is not a surgery, but a post-mortem and it will not give life to the dead person.
14. Furthermore, Section 87 of the Negotiable Instruments Act would also throw some light. Section 87 would provide thus :
"87. Affect 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."
15. Thus, the section makes it clear that any material alteration of the negotiable instrument renders the same void as against anyone who is a party thereto. When the alteration would adversely affect the interest of the other side, the same can be termed as material alteration. In other words, when the date is changed, that too in an invalid cheque after the expiry of the period of validity, it is certainly material alteration, since it affects the interest of the parties.
16. It is settled law that a material alteration is one which varies the rights, liabilities or lega! position of the parties 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 may otherwise prejudice the party bound by the instrument as originally expressed.
17. Material alteration takes in not only a case where certain thing which is already written has been altered but also a new insertion that did not form part of the document originally executed.
18. In the light of the above legal principles, the alteration of the year 1995 into 1996 would definitely be construed to be a material alteration which would affect the interest of the accused party and as such Section 87 would squarely apply to this case.
19. It is also mentioned in the complaint itself that the complainant received reply to the statutory notice stating that the accused was not the willing party to the said alteration. Even otherwise, as stated above, the material alteration stated to have been made by the accused in the negotiable instrument long after the expiry of the period of validity would render the said instrument void as contemplated under Section 87 of the Act.
20. Under those circumstances, the complaint which has been filed in the present case on the basis of the invalid negotiable instrument cannot be maintained.
21. In view of what is stated above, the proceedings are not sustainable under law and the same liable to be quashed and accordingly quashed. Thus, the petition is allowed. Consequently Crl.M.P. No. 10473 of 1998 is closed.