SHAKTI PUMPS I LTD Vs. VARUNJI SALES

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 13.12.2007 passed by J.M.F.C., Indore in Cri. Case No 1857/2003, whereby complaint filed by the petitioner under Section 138 of Negotiable Instruments Act (for short which shall be hereinafter referred to as the N.I. Act) was dismissed and the respondent was acquitted, the present appeal has been filed

(2.) SHORT facts of the case are that petitioner filed a complaint under Section 138 of N.I. Act before the Court below alleging that the goods were purchased by the respondent and in lieu of that two cheques were issued by the respondent on 1.3.2002 for Rs.42,808/- and on 8.4.2002 for Rs.2,70,986/-. It was alleged that upon submission of the cheques the same were dishonoured. Vide memorandum dated 30.5.2002 the cheques were returned. It was alleged that inspite of demand the cheque amount was not paid by the appellant. It was alleged that the respondent be punished under Section 138 of N.I. Act. It was alleged that after framing of charges and after giving an opportunity of hearing respondent be convicted. Upon complaint filed by the petitioner cognizance of the offence was taken. After framing of charges and recording of evidence respondent was acquitted and the complaint filed by the appellant was dismissed, against which the present appeal has been filed.

(3.) FROM perusal of the record it appears that the cheques are Ex.P/1 and P/2 and in both the cheques there is overwriting on the date of issuance of cheques. There is overwriting in the digit of year 2002, which bears no initials. The cheques were also returned with the remark that cheques are manipulated. It is also true that the cheques were also returned with the remark of the Bank that closed but since there was an overwriting in the date, therefore, the cheques have been returned. In the matter of Allampati Subba Reddy Vs. Neelapareddi Ramananddi, reported in AIR 1966 AP 267, wherein the date was altered in a negotiable instrument on the basis of which High Court has observed that plaintiff seeking to enforce promissory note must explain to Court as to when and how alteration was made. In absence of such explanation, plaintiff must fail as onus is on him to show that material alteration was made either with consent of parties or in order to effectuate common intention of parties. In absence of such plea, presumption is that material alteration was made subsequent to execution of document. In the complaint there is no explanation about the interpolation. However, in para 7 of the examination-in-chief i.e. in the affidavit, which has been filed by the appellant in support of the complaint, it is stated that interpolation is made by the respondent but in what circumstances when and why interpolation has been made is not explained. It appears that because of interpolation in the cheques Ex.P/1 and P/2 the complaint is in time. In the facts and circumstances of the case this Court is of the view that no illegality has been committed by the learned Court below in dismissing the complaint filed by the appellant. In view of this appeal filed by the appellant is dismissed.