IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No.346 of 2007 (Under Section 482 Cr.P.C.) Chandramohan ………. Applicant Versus State of Uttarakhand & another ..…. Opp. Parties Sri Parikshit Saini, Advocate for the applicant. Sri P.S. Bohra, Brief Holder for the State/respondent no.1 Dated: August 27, 2011 Hon’ble Servesh Kumar Gupta, J. By way of this criminal application, it has been sought to quash the order of cognizance dated 24.3.2007 passed by IInd Special Magistrate, Haridwar in criminal case no.719 of 2007, Nand Kishore Vs. Chandra Mohan. It has also been prayed to quash the entire proceedings of the said complaint case. It is pertinent to mention that this Court has given hearing to the leaned counsel for the applicant, while none turns up on behalf of opposite party no.2, despite of sufficient service upon him through his son Nikhil. The background facts, as emerging out from the records available before this Court are that the opposite party no.2- Nand Kishore executed a sale deed of a piece of land measuring 1000 square feet in favour of Smt. Asha Devi, wife of applicant Chandra Mohan. Since there was some encumbrance upon the piece of land, so the applicant paid only Rs.8,000/- in cash, while two cheques, each measuring Rs.46,000/- were issued in favour of Nand Kishore, the vendor of the land. Out of these two cheques, one was cheque no.227401 dated 12.9.2005 from account no.9338 existing in the Indian Overseas Bank, Kankhal, Haridwar. When that cheque was presented by Sri Nand Kishore in the bank, the 2 payment of the same was stopped by the Drawer, so it was returned to the drawee with the endorsement on the memo by the Bank. Alleging the non-payment of Rs.46,000/-, thereafter a criminal complaint case no.767 of 2005 (later on numbered as 150/2006) was filed by Nand Kishore against the applicant Chandra Mohan, wherein the applicant was summoned after passing of the order of cognizance u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter will be referred as the Act). The applicant contested that case, which ultimately resulted in dismissal on 1.3.2007 due to non-prosecution. The second cheque no.227402 worth Rs.46,000/- bearing the initial date ‘22.10.2005’ was also fell into controversy for the reason that the date ’22.10.2005’ was cut and other date ’13.6.2006’ was mentioned and the signature of applicant Chandra Mohan was appended thereto. When the said cheque was presented by Nand Kishore in the bank, the same returned vide memo of the bank with the endorsement “payment stopped by the drawer”. So, Sri Nand Kishore filed another criminal complaint case no.719 of 2007 wherein the cognizance was made by the learned Magistrate after receiving the statement of Nand Kishore u/s 200 Cr.P.C. on an affidavit. It is this cognizance order dated 24.3.2007 where against the petition has been filed along with the prayer to quash the same in toto. It has been argued on behalf of the petitioner that both the cheques were in possession of the complainant/opposite party no.2 eversince 22.7.2005 and he himself manipulated the date “13.6.2006” by cutting the previous one “22.10.2005”. It has also been argued that it was done mischievously by Nand Kishore with all dishonest intention for the reason to get the payment twice because when the encumbrance over the said land was cleared, the entire remaining money had already 3 been paid to him but the cheques were not returned by Nand Kishore to its drawer-petitioner. Instead, he presented both the cheques to the bank and the payment of the same was got stopped in light of the circumstances aforestated. Sri Nand Kishore did not contest the previous complaint, so it was dismissed in non-prosecution and against the order of cognizance taken in the second complaint, this petition was filed and ad interim relief in the form of staying the proceedings was granted by this Court. Complainant/respondent no.2 did this mischief of manipulation in the date mentioned in the cheque just to secure his ill motive of double payment. He presented the second cheque for payment in the bank on 10.11.2006, so in order to bring the encashment of the cheque within the time limitation of six months, he manipulated this date in the manner, as aforestated. Learned counsel has quoted the intention of the Legislature envisaged in such matters of enactment of Section 87 of the Act, which reads as under: - “87. Effect of material alteration- Any material alteration of a negotiable instrument renders the same 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; “Alteration by indoresee- And any such alteration if made by an indorsee, discharges his indorser from any liability to him in respect of the consideration thereof.” The provisions of this section are subject to those of sections 20, 49, 86 and 125.” He has also relied upon the precedent of Hon’ble Allahabad High Court in the case of “Fragrant Leasing & Finance Company Ltd. & Anr. V. Jagdish Katuriya & anr. Reported in 2007 Cri. L.J. 3880”, wherein the scope of 4 Section 87 of the Act has been interpreted by the Court where material alteration in cheque has been made and the same was in possession of the complainant. This alteration was in the date to make it presentable within six months. Then the Hon’ble Court was of the view that such dates could not be written by accused as the cheques were in exclusive custody of complainant. Such material alteration in cheques, without the consent of drawer makes them void as envisaged u/s 87 of the Act and once the cheque is void, no action could be taken u/s 138 of the Act. The similar construction of intention of legislature envisaged u/s 87 of the Act has also been expressed in the precedent of Hon’ble Bombay High Court in the case of “Nandkishore Mehra vs. Sudhir Transport Ltd. & Anr. Reported in 2008 (6) ABR (NOC) 990 (BOM.)”. In view of the above, this Court is of the view that the material alteration in the date, converting it from ‘22.10.2005’ to ‘13.6.2006’ makes the cheque itself void. It is also pertinent to mention here that the case of the complainant Nand Kishore is not with the fact that such alteration was made by Chandra Mohan himself, before or at the time or even thereafter issuance of the cheque. He has not made any averment to this effect in the impugned complaint. So, in view of the above, the cheque in question is a void one and no action can be initiated u/s 138 of the Act on the basis of such an instrument. So, the order of cognizance and the complaint, aforementioned, are liable to be quashed. C482 Petition is allowed. Order of cognizance as well as the complaint, titled above, are hereby quashed. (Servesh Kumar Gupta, J.) 27.08.2011 Rajeev Dang