IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 70 OF 2008 IN STAMP NUMBER MAIN NO. 17 OF 2008 M/S. SEIKO AND SEIKO MANUFACTURES STORAGE BATTERIES AND ACCESSORIES THROUGH PROPRIETOR S. K. MEHTA ... Applicant Versus M/S. ENCO BATTERIES THROUGH PROPRIETOR MR. BABU NAIR AND ANR., ... Respondents Mr. P. P. Singh, Advocate for the Applicant. Coram:- N. A. BRITTO, J. Date:- 5th September, 2008 P.C.:- Heard Mr. P. P. Singh, learned Counsel on behalf of the Applicant/Complainant. The Complainant is seeking leave to appeal against the Judgment of acquittal under Section 138 of the Negotiable Instruments Act, 1881 dated 16-10-2007 of the learned Additional Sessions Judge, South Goa, Margao. The subject matter of disputes between the complainant and the accused are four cheques bearing Nos. 0452 for Rs.43,461/- and 0453 for Rs.20,000/- both dated 15-4-2003, cheque No.0460 for Rs.38,700/- dated 25-4-2003 and No.0450 for Rs.5,514/- dated 29-12-2002. There is no dispute that the complainant on receipt of the said cheques from the accused deposited the same in Corporation Bank for collection. There was some delay but ultimately the Usgao Vikas Seva Society on whom they were drawn was pleased to return the said cheques with endorsement that the dates were fraudulently altered. The complainant sent the statutory notice demanding payment, upon the said dishonour of the cheques and the accused replied to the same, admitting that though the cheques were issued, they were not issued on the dates mentioned on the said cheques. It was further clarified that cheque No.0452 for Rs.43,461/- was given in January, 2002 postdated on 15-4-2002. Cheque No.0453 the date was changed from 2002 to 2003, cheque No.0453 was given in January, 2002, postdated on 15-4-2002 and cheque No.0460 was given on 25-4-2002 but the complainant had changed the date to 25-4-2003. The accused was initially convicted by the learned Chief Judicial Magistrate but came to be acquitted by the impugned Judgment. In acquitting the accused, the learned Additional Sessions Judge, Margao observed that the complainant had not produced the cheque return memo to show that the cheques were dishonoured for want of funds and had also not given any reason for not producing the cheque return memo. The learned Additional Sessions Judge noted that Umesh/PW2 in his cross-examination had stated that the cheques were not honoured on account of the alterations. The learned Additional Sessions Judge observed that the cheque admittedly showed that there were alterations but there was no evidence to show that at the relevant time there was no balance in the account of the accused. The learned Additional Sessions Judge further observed that the cheques were admittedly returned on account of material alterations and therefore it was necessary for the complainant to prove that at the relevant time there was no balance in the account of the accused who through the records proved that there was no balance and in the absence of any evidence it could not be held that the cheques were returned for want of funds in the account of the accused. Admittedly, the cheques were returned because there were material alterations as regards to dates. The case of the complainant and his banker, namely, the said Corporation Bank appears to be that the said alterations were done by the accused in connivance with his own bankers, namely Usgao Vikas Seva Society. The accused has denied that the alterations were done by him, in his own evidence. One does not know what was the occasion for the complainant's witness the said Umesh to have particularly noted that the subject cheques did not have any alterations as regards dates, before sending for collection. One also does not know why the banker of the accused should have carried out any alterations on the cheques sent for collection. Learned Counsel on behalf of the complainant submits that the subject cheques remained with the banker of the accused for over 40 days but this submission does not help the complainant in any manner to prove his own case. As already stated, the cheques as per the banker of the accused as well as the accused were returned because there was alteration as regards date and both the parties have blamed one another for the said alteration. The learned Additional Sessions Judge has also noted that the accused had produced the counterfoils and the said counterfoils produced by the accused appear to have been written with the same pen with which the corresponding cheques were filled in and the said counterfoils bear the dates of 15-4-2002, 25-4-2002 and 20-1-2002 and these supported the defence version, and, on the basis of the same the learned Additional Sessions Judge came to the conclusion that the said alterations were not carried out by the accused. In my view, this finding could not be faulted. Once the subject cheques were returned because of material alterations as regards date the same could not come within the purview of a prosecution under Section 138 of the Negotiable Instruments Act, 1881. This view has been held by this Court in the case of Babulal Nainmal Jain v. Khimji Ratanshi Dedhia and others(1998 CRI.L.J. 4750) stating that if a cheque is returned on account of any structural defect i.e. any defect in its form, want of signature, date has not been properly written, figure of the amount has been over written or erasures in the drawer's name, etc. the same will not amount to an offence punishable under Section 138 of the Act. True, the learned Additional Sessions Judge did observe that some of the cheques were issued against certain specified invoices but the fact remains that they were returned on account of material alterations. In the light of that, in my view, this is not a fit case to grant leave to appeal. Application dismissed. N. A. BRITTO, J. RD.