IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 Crl.Rev.Pet.No. 1042 of 2005() ------------------------------ ST.4696/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR CRA.447/2003 of ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT I, THRISSUR .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- K.K.CHANDRAN, KUNNUPARAMBIL HOUSE, KAIPPULLY WEST ROAD, ARIMPUR, P.O.THRISSUR. BY ADV. MR.DILIP J. AKKARA RESPONDENT(S): RESPONDENTS:COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. P.S.RAMAKRISHNAN, S/O.SANKU, POTTEKKAT HOUSE, KOZHIKKULLY P.O. THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.C.HARIKUMAR R2 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No.1042 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 24th March, 2009 ORDER The revision is by the accused against the concurrent verdict of guilty rendered against him for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). The learned Magistrate, after trial, negativing his plea of not guilty, found him guilty of the offence indicted and, thereupon, he was convicted and sentenced to undergo simple imprisonment for a period of one month and to pay a sum of Rs.25,800/- to the complainant under Section 357(3) of the Cr.P.C. with a default term of simple imprisonment for one month more. In appeal, the learned Sessions Judge confirming conviction modified the sentence directing him to undergo imprisonment till the rising of the court and to pay compensation of Rs.30,000/- with default term of simple imprisonment for one month. Aggrieved by the conviction and sentence as indicated above, questioning its legality, propriety and correctness, the accused has come up with this revision. 2. I heard the counsel on both sides. The case of the complainant is that towards discharge of a debt, the accused issued Ext.P1 cheque for Rs.25,800/- promising its encashment on Crl.R.P.No.1042/05 - 2 - presentation in due course. The cheque presented was, however, dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating dishonour of the cheque and demanding the sum covered by the instrument was responded with a reply raising untenable contentions. The complainant, thereupon, launched the prosecution of the accused indicting him of the offence under Section 138 of the N.I.Act. The accused, on appearance, pleaded not guilty. The complainant examined himself as P.W.1 and got marked Exts.P1 to P7 to prove his case. The accused questioned under Section 313 of the Cr.P.C. reiterated his plea of innocence. He got himself examined as D.W.1 to substantiate his defence that the cheque was issued in blank form, and whatever amount due to the complainant, had already been discharged by payment in instalments and also the instrument, Ext.P1 cheque, was materially altered and as such the prosecution set up against him must fail. The learned Magistrate after anxious consideration of the materials produced found the case of the complainant trustworthy, credible and reliable, and the plea set up by the accused as unworthy of credence. In that view of the matter, the learned Magistrate found the accused guilty of the offence imputed and he was thereupon Crl.R.P.No.1042/05 - 3 - convicted and sentenced as indicated above. The learned Sessions Judge, in appeal, concurred with the finding of guilt entered against the accused and upheld the conviction imposed against him. Sentence, however, was modified as referred to above. 3. Before me, the learned counsel for the accused contended that both the courts lost sight of the fact that the instrument, Ext.P1 cheque, produced, on the basis of which the prosecution was launched against the accused, was materially altered. The alteration made in the instrument is clearly visible and, that being so, without cogent and convincing explanation from the complainant that the alteration had been made with the consent of the drawer of the instrument, the prosecution set up against the accused, cannot be sustained. In that view of the matter, it is contended, the conviction imposed against the accused is totally unsustainable. The learned counsel relied on Ramachandran v. Dinesan (2005(1) KLT 353) to contend that if there is a material alteration in the instrument, it amounts to cancellation of the instrument and it cannot be used for any purpose whatsoever, leave alone the prosecution of the drawer for a penal offence under Section 138 of the N.I.Act. The accused in the present case has studied only upto 5th standard, as deposed by Crl.R.P.No.1042/05 - 4 - him when examined as D.W.1, and his assertion as such, was not challenged during his cross examination is also banked upon by the learned counsel to contend that even if he had not set up a specific plea of material alteration of the instrument, that would not affect the merit of his defence when the law interdicts reliance on a materially altered instrument and render it unworthy of any value, treating it as void except where it is shown that the alteration had been made on the authority conferred by the drawer or as provided by the exceptions covered by Sections 20, 46 and 125 of the N.I.Act. So much so, it is submitted that the conviction imposed against the accused in view of the material alteration of the instrument, is liable to be set aside. The learned counsel for the complainant submitted that there is no merit in the challenge raised by the accused that the instrument was materially altered. He had no case while sending a reply or when the complainant was examined that the instrument was materially altered by the complainant. The specific case set up by the accused was that he had issued the cheque in blank form with signature alone and whatever amount due to the complainant had been discharged. Plea of material alteration urged during the course of the trial in the given facts of the case, according to the learned Crl.R.P.No.1042/05 - 5 - counsel, is devoid of any merit. 4. I have examined Ext.P1 cheque which is stated to have been materially altered. The alteration alleged is correction of the figure '5' in the sum of Rs.25,800/- written in Ext.P1 cheque. In appreciating the defence canvassed by the accused that the instrument was materially altered as rightly contended by the learned counsel for the complainant, the defence canvassed by him in his reply notice has first of all to be looked into. Specific defence canvassed by the accused in Ext.P7 reply notice was that in respect of a transaction arising out of the sale of a tractor sold by the complainant to him, a sum of Rs.5000/- was due and towards security for that outstanding dues, he issued Ext.P1 cheque in blank form with signature alone. He had no case that any writing either in figures or letters was written in that instrument. The reply is specific that the cheque was in blank form with signature alone, not even that a post dated cheque was issued. Leaving that aspect, it has to be noted when the complainant was examined as P.W.1, the accused had no case that the instrument was materially altered. No question was made to the complainant leave alone his attention was invited to contend that there was an alteration rendering it void. The learned counsel for the accused Crl.R.P.No.1042/05 - 6 - submitted before me that no burden was cast upon the accused to bring to the notice of the complainant, if at all, there was any alteration in the instrument to provide him an opportunity to explain such alteration. I am afraid the submission so canvassed has no merit at all, especially where section 49 of the N.I.Act confers authority on the payee or the holder in due course of the instrument to complete the instrument if it was issued in blank form provided such authority was given by the maker. The mere fact that the instrument is given in blank form with signature alone, does not interdict or prohibit the payee or the holder in due course in completing the instrument, subject to authority given to make it presentable. When that be the position of law as enshrined by the statute, if the accused has got a case that the instrument is materially altered rendering it void, he has to set up such a case definitely and invite the attention of the complainant and elicite his explanation. That has not been done in the present case. As rightly pointed by the learned counsel for the complainant, the case of the defence is that the figure '5' in the instrument was corrected and that, according to the accused, amounted to material alteration. His specific case is that only an amount of Rs.5,000/- was due to the complainant for which the Crl.R.P.No.1042/05 - 7 - instrument was given in blank form with signature alone. He has no case that the sum of Rs.5,000/- was written by him and, without his authority, it was altered by the complainant. The question of alteration comes when a correction is made without authority. If at all, the complainant had corrected the sum in the instrument given in blank form, that amounts only to a correction and not an alteration. A correction cannot be equated with an alteration. Further more, the accused has no case the figure '0' (zero) coming after 5 was corrected as 8 as the instrument shows it had been drawn for a sum of Rs.25,800/-. In this context, it is also pertinent to note that the instrument presented for encashment was returned by the Bank not on the ground that it was altered, but for the reason of insufficiency of funds in the account of the accused. True, Ext.P1 instrument would show there is some overwriting in the letter '5'. That itself cannot be considered or treated to hold that the instrument is materially altered. Had it been a case where the accused set up a defence that the instrument was drawn with a definite figure and the correction amounted to alteration, a further enquiry whether there was an alteration in the instrument might have been called for. On the face of the instrument, both the courts below have found there was no Crl.R.P.No.1042/05 - 8 - material alteration in the instrument. Simply because there is some overwriting in one of the figures, it is feeble on the part of the accused to contend, without taking any further steps by sending over the document to an expert and collecting his report, that the instrument was materially altered. The plea set up by the accused that the instrument is materially altered solely on the basis of the overwriting appearing in figure '5', in the facts and circumstances of the case, has to be taken note of only for its rejection. The decision relied by the learned counsel, namely, 'Ramachandran v. Dinesan' (2005(1) KLT 353), the facts are entirely different. That was a case where the accused contended that originally the figure written in the instrument was Rs.25,000/-, but an incorporation of the figure '1' (one) preceding that sum was added to make it as Rs.1,25,000/-. In the present case the definite case of the accused is that he issued the cheque in blank form with signature alone. The accused had also given evidence, when examined as D.W.1, that he had studied only upto 5th standard, to contend that the writings in the instrument were not written by him. Whatever be the assertion made by the accused, in the present case, the sum entered both in figure and letter appears to be written by the same hand. I find absolutely no merit in the Crl.R.P.No.1042/05 - 9 - defence canvassed that the instrument is materially altered. The finding entered by both the courts below that the accused is guilty of the offence under Section 138 of the N.I.Act is fully supported by the materials produced in the case. The conviction of the accused is only to be upheld and I do so. As regards the sentence, maximum leniency has been extended by the learned Sessions Judge and no modification is called for. However, a time limit has to be fixed for payment of compensation to the complainant as directed and also to serve the sentence of imprisonment till the rising of the court as ordered by the learned Sessions Judge. Compensation awarded under Section 357(3) of the Cr.P.C. shall be paid by the accused within two months from the date of this order, failing which he shall undergo the default term of imprisonment imposed. The accused shall appear and his sureties shall produce him on 1st June, 2009 before the Judicial First Class Magistrate II, Thrissur, and the learned Magistrate shall execute the sentence as directed. The revision is devoid of any merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE