Full Judgment
K.A. Abdul Gafoor, J.
1. The appellant/complaint initiated prosecution against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. This ended in acquittal. Therefore, this appeal.
2. The case put forth by the complainant was that a cheque for an amount of Rs. 11.775/- issued by the accused in favour of the complainant in consideration of the amount taken as loan by him bounced. Statutory notice did not result in payment. Therefore, the accused committed offence punishable under Section 138 of the N.I. Act. The case of the accused was that there was some transaction between him and one Maman, the brother of the husband of the complainant and towards the amounts due to him the cheque was issued. It was a blank cheque. That cheque was being made use of by the complainant. It was not supported by consideration. Moreover, there was material alteration in the cheque. The amount written in words and the name of the payee had been written admittedly by the complainant herself. A perusal of the cheque will further reveal that there were certain corrections where the amount in words had been written. That also will amount to material alteration of the cheque. So, no offence had been made out against the accused, submits the counsel for the accused.
3. Appreciating the evidence on record the trial Court came to the conclusion that the case put forth by the accused was more probable. It is contended by the counsel for the appellant that the finding of the Court below is erroneous. The signature is admitted by the accused and no independent evidence had been adduced by him. According to him, he had issued the cheque to Maman, the brother of complainant's husband. Thus, the presumption is available against him under Section 118 read with Section 139 of the N.I. Act. That presumption could not be rebutted by the accused. Further, the accused did not send a reply to the statutory notice, thereby, tacitly admitting the allegations made out in the demand notice. So the acquittal is not justified, submits the counsel for the appellant/complainant.
4. The counsel for the accused submits that going by Section 18 of the N.I. Act the banker will take into account only the amount written in words for the purpose of paying cash. Necessarily, that portion was written in the blank cheque by the complainant which amounts to substantial material alteration. It is further submitted that even in the amount written in figures there is material difference in two ones' preceding the figure 775. This also reveals that there was material alteration in the figure portion as well. Deposition of P.W.2, the Bank Manager also substantiated his case. P.W.2 had stated that even though the cheque had been bounced for want of sufficient funds, the cash would not have been given to such cheque even if sufficient fund was available, because of material alteration in the cheque. There was insertion in the place of writing the amount in words as (Matter in vernacular omitted -- Ed.) (700) in between (Matter in vernacular omitted -- Ed.) (11000) and (Matter is vernacular omitted -- Ed.) (75). It had not been attested by full signature of the drawer. Therefore, it is not known which is the real denomination of the cheque. So, no case under Section 138 of the N.I. Act was made out.
5. The Court below acquitted the accused on the ground of material alteration of the cheque. Whether it is a justified conclusion, is the point to be considered in this appeal. It is an admitted case of the complainant that she had written payee's name and amount in the cheque. A mere filling of figures in the cheque will not amount material alteration when the cheque is in the hands of the payee.
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 figure '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 (Matter in vernacular omitted -- Ed.) (eleven thousand and seventy five only). If it is so taken there is substantial difference between Rs. 11.075/- and Rs. 11.775/-. But in order to make it in tune with the amount mentioned in figure namely, 11,775/-, the words (Matter is vernacular omitted -- Ed.) (seven hundred) in inserted between (Matter in vernacular omitted -- Ed.) (eleven thousand) and (Matter in vernacular omitted -- Ed.) (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, P.W.2 has deposed that he would not have honoured the cheque even if, there was sufficient fund in the account 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.
This appeal failed, dismissed.