1 APPLN.5778-2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5778 OF 2009 Shridhar Marutirao Gonjare ...Applicant. Vs. Vishnu Lakshman Akhade & Anr. ....Respondents. ---- Mr. Harshad Bhadbhade, for the applicant. Mr. Sanskar Marathe, for Respondent No.1. Mrs. M.M. Deshmukh, APP for the State. ---- CORAM: U. D. SALVI, J. APRIL 07, 2011. P.C.: Heard. Perused the application and annexures thereto comprising virtually all the relevant records and proceedings. 2 The learned trial court chose to acquit respondent no.1- accused from the charge punishable under Section 138 of the Negotiable Instruments Act for the reason of material alteration in the cheque i.e. ‘date 15.9.2001’ being made without the consent of respondent no.1-accused drawer. 2 APPLN.5778-2009 3 Mr. Bhadbhade, the learned Advocate for the applicant submitted that the issuance of the cheque by the accused was undisputed fact and the banker had not returned the cheque for the reason of alteration in date/figure/words but for the funds being not arranged to honour the cheque. He further pointed out from the copy of the cheque that the date thereon was altered and the alteration carried the initial of the accused and as such the alteration was consented by the accused. Reading from the cross-examination of the complainant, he pointed out that it was the case of the accused that the alteration was restricted to the change in the numerical expression of the month in Marathi to its English version and the contents of the cheque, name, date and amount in figures as well as the words were written by him (complainant) in his hand-writing. 4 On the other hand the accused examined himself and averred that he had repaid the entire loan amount and the cheque bearing no. 538622 dated 15.9.2001 was given as and by way of security for the loan advanced and the said cheque was not returned to him after the repayment of the loan amount on the pretext that the cheque was not being found, and was misplaced; and the said cheque was misused by making alteration thereon. He categorically asserted in his evidence that he had not given 3 APPLN.5778-2009 consent to any alteration in the date. His cross-examination reveals that he admitted his signature and the contents of the said cheque except the date. There was opportunity for the complainant to bring on record through the testimony of the respondent-accused the fact concerning the alleged initials of the respondent-accused below alteration made in the date. However, nothing was asked to the accused in the cross-examination regarding the said aspect. Thus, the evidence fails to show that the manifest alteration was consented to by the respondent-accused by subscribing his initials below the said alteration. Moreover, the complainant neither whispered that the said alteration carried the initial of the respondent no.1-accused nor called the Banker or anyone to testify that the alteration carried the initial/signature of the accused. 5 In the circumstances, the impugned judgment and order of the learned trial court cannot be faulted with and hence the leave is refused. 6 Criminal Application No.5778 of 2009 stands disposed off accordingly. (U. D. SALVI,J.) 4 APPLN.5778-2009