1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3187 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri A.R. Borulkar, Advocate for the applicant. 2. Applicant seeks leave to file appeal against the judgment and order of acquittal recorded by the learned Judicial Magistrate, First, Class, Soigaon, on 20.7.2007 in S.T.C. No.56 of 2008. 3. Present applicant was the original complainant who had filed complaint against respondent-accused for committing offence under Section 138 of the Negotiable Instruments Act. It is the case of the applicant that the accused is a dealer in cotton and had 2 purchased 36 quintiles of cotton worth Rs.72,000/= on 5.2.2007 but could not pay that amount. It was, therefore, agreed the accused shall pay the said amount on or before 15.12.2007 and for that, the accused issued two cheques in favour of the complainant, out of which one was for Rs.30,000/= and another for Rs.42,000. However, when those cheques were presented by the complainant for encashment to the banker of the accused, the same were dishonoured and hence, notice raising demand was issued by complainant to the accused on 28.2.2008. Since the amount was not paid, complaint was filed. 4. In paragraphs 17 to 20 of his judgment, the learned trial judge has observed that although the complainant-applicant herein in his deposition denied that there was any overwriting in the cheque, the cheque (Exh.18) clearly shows that both, in the digits of month as also last digit of the year, there is overwriting. 3 The complainant did not explain who had done the overwriting and at what time. The learned Magistrate referred to Section 87 of the Negotiable Instruments Act, 1881 which lays down that any material alteration of negotiable instrument renders the same as void as against any one 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. 5. The alteration in the date on the cheque is not signed or initialled by anybody nor the complainant himself says that the alteration was carried out by consent of complainant and accused. So, the cheque itself becomes void as against the accused. The view taken by the learned Magistrate that on such altered cheque, no conviction for offence under Section 138 of the Negotiable Instrument Act can be based, is legal, valid and proper view. 4 6. Shri Borulkar, learned counsel for the applicant relied upon the case of Raj Kumar vs. State (NCT) 2007 (4) Mh.L.J. 427. In paragraph 10 of which the ingredients of Section 138 which create criminal liability in terms of the said section are stated. There is no dispute about the same. But, in the present case, cheque has become void due to alterations made as stated above. 7. Hence, criminal application is dismissed. Date:21/11/2009 (P.R.BORKAR, J.) pnd/criap3187.09