IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.R.UDAYABHANU THURSDAY, THE 25TH OCTOBER 2007 / 3RD KARTHIKA 1929 CRL.A.No. 706 of 2002() ----------------------- CC.231/2000 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT: COMPLAINANT: ----------------------- SUNNY C.THOMAS, POOPADACHERIPARAMBIL, RUBBER BOARD P.O., KOTTAYAM. BY ADV. SRI.B.PREMOD RESPONDENTS: ACCUSED: --------------------- 1. MADANLAL, CONVENOR, KANNANKARIPADASEKHARA SAMRAKSHANA SAMITHI, THEKKECHIRA, THIRUVARAPPU, P.O. KANJIRAM,KOTTAYAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/10/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T NO STEPS. NO REPRESENTATION. DISMISSED. SD/- K.R.UDAYABHANU, JUDGE 25/10/2007 \\TRUE COPY// P.A.to Judge K.P. Balachandran, J. --------------------------- Crl.A.No. 706 of 2002 --------------------------- JUDGMENT The complainant in C.C.No.231/00 on the file of the Chief Judicial Magistrate's Court, Kottayam is the appellant. He assails in this appeal the judgment passed by the learned Chief Judicial Magistrate acquitting the first respondent of offence punishable under Section 138 of the Negotiable Instruments Act, vide Section 255(1) Cr.P.C. 2. The appellant filed complaint in the court below alleging, inter alia, that in discharge of an existing legal liability, the first respondent issued Exhibit P1 cheque to him for an amount of Rs.20,000/-; that on presentation of the cheque for encashment through his bankers the State Bank of Travancore, Mannarkad Branch, it was returned dishonoured for reason of insufficiency of funds in the account of the first respondent to honour the same; that the first respondent issued Exhibit P1 CRA 706/02 2 cheque in his capacity as Convener of the Kannankari Padasekhara Samrakshana Samithi (hereinafter referred to as 'the Samithi') and he was fully aware that there was no sufficient funds in the account of the said Samithi; that original of Exhibit P4 notice was issued to the first respondent through Lawyer under Exhibit P5 postal registration receipt intimating him of the dishonour of the cheque and demanding payment of the amounts covered by the cheque; that the said notice was accepted by the first respondent under Exhibit P6 postal acknowledgment card, but he has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and he has thereby committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The learned Chief Judicial Magistrate took cognizance of the offence under Section 138 of the Negotiable Instruments Act and registered the case CRA 706/02 3 on the file of his court as C.C.No.231/00. 4. On appearance of the first respondent in the court below pursuant to issuance of summons, he was served with copies of all relevant records in the case and he was question by the learned Chief Judicial Magistrate, reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. 5. On the side of the appellant, he gave evidence as PW1 and got marked in evidence Exhibits P1 to P8. On the appellant closing his evidence the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, he has not issued any cheque to the appellant in his personal capacity; that there was an agreement with the appellant for removal of CRA 706/02 4 soil from his property for and on behalf of the Samithi and on completion of the contract, which was entered into orally, an amount of Rs.20,000/- was due to the appellant; that there was some scarcity for cash in the Samithi and therefore, by way of security, Exhibit P1 cheque was given to him; that the account in which cheque was drawn and issued to the appellant was a joint account maintained in the name of the Padasekhara Bharanasamithi; that the cheque was dated 28.2.1999 and was issued on the understanding that it would not be presented before the Bank and that an amount of Rs.17,500/- was paid to the appellant in six instalments and the appellant gave a statement of accounts stating that in case the balance amount also is not paid, the cheque would be presented before 28th in the bank and it is thereafter that the appellant has effected material alteration in the cheque effecting correction of the date in the cheque as 28.12.1999. CRA 706/02 5 6. On the defence side, the first respondent has tendered evidence as DW1 and has got marked in evidence Exhibits D1 and D2. The court below considered the case in the light of the evidence adduced as aforesaid; found that there is material alteration in Exhibit P1 cheque and consequently found that the first respondent cannot be found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act consequent on dishonour of the cheque presented long after the expiry of the period of its validity by correcting the month in which it was issued, effecting material alteration in the cheque. 7. It is vehemently contended before me by the learned counsel for the appellant that the first respondent is having liability, as he has issued the cheque along with the Chairman of the Padasekhara Baranasamithi and that the finding of the court below that there is material alteration in Exhibit P1 cheque and cannot, therefore, be CRA 706/02 6 acted upon for the purpose of entering into a conviction of the first respondent is untenable. 8. The complaint filed by the appellant in the court below is against Madanlal, describing him as the Convener of the Samithi. Exhibit P1 cheque is one issued in an account maintained by the Samithi and not in an account maintained by the first respondent Madanlal. The signatories to Exhibit P1 cheque are the Chairman and the Convener of the Samithi and they have affixed their signatures under the seal of the Society. When a cheque is issued, drawn on an account maintained by a legal entity like the Samithi, the offender is the said Samithi and the signatories to the cheque are also fastened with liability by reason of Section 141 of the Negotiable Instruments Act and the definition of a Company in the explanation given thereunder. Apart from that,without the Samithi being impleaded as an accused, one of the signatories to the cheque cannot be proceeded against, impleading him alone CRA 706/02 7 as an accused and the complaint for that reason is not maintainable as against the first respondent. Further, in Exhibit D2 reply notice itself, the first respondent has pointed out that there is material alteration in Exhibit P1 cheque and that the real date the cheque bears was 28.2.1999 and not 28.12.1999 and that the appellant was wilfully changing the date of the cheque to fasten criminal liability on the first respondent. 9. It is also worthy to note that the first respondent has produced Exhibit D1 as an account of soil removed from the property of the appellant, forwarded by the appellant to the first respondent and beneath the statement, contains a photostat copy of Exhibit P1 cheque, as it was, when issued. The account is actually for the period from 29.4.1998 to 6.7.1998. The date of the cheque is 28.2.1999 and the period of its validity was to expire by 28.8.1999. The first respondent himself has tendered evidence as DW1 and the counsel for CRA 706/02 8 the appellant has cross-examined him. There is no challenge as regards Exhibit D1 statement that it is not the statement forwarded by the appellant to the first respondent. Further, in Exhibit D1 statement forwarded by the appellant to the first respondent, a photocopy of the cheque issued by the Convener and Chairman of the Samithi is furnished beneath the statement. The statement is furnished by the appellant himself as he was in possession of the cheque and the first respondent could not have taken a photocopy beneath the statement furnished by the appellant, as contended by the counsel for the appellant, as the first respondent was not having in his possession the cheque already issued to the appellant. On a comparison of the photostat copy of Exhibit P1 cheque beneath Exhibit D1 and the original Exhibit P1 produced before this Court, it can be seen that number “1” preceding the number “2” in the space provided for noting the month is inserted in Exhibit P1 and that too with ink having CRA 706/02 9 some difference from the ink used to write in the cheque and to date the cheque with date 28.2.1999. 10. Thus, for the reasons discussed above, namely, for the reason that the complaint has been filed only against the first respondent Madanlal and not against the Samithi as also the Chairman thereof and also for the reason that there is material alteration effected in Exhibit P1 cheque, which had become stale, with a view to give it valid, the complaint filed by the appellant is not maintainable and the first respondent cannot be found guilty of offence punishable under Section 138 of the Negotiable Instruments Act on the basis thereof. This appeal, in the circumstances, is devoid of any merit and deserves only to be dismissed. In the result, I dismiss this criminal appeal. 28th March, 2008 (K.P.Balachandran, Judge) tkv CRA 706/02 10 K.P.Balachandran, J. --------------------- Crl.A.No.706 of 2002 --------------------- JUDGMENT 28th March, 2008