SUNIL KUMAR TYAGI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY this criminal misc. petition under section 482 Cr.P.C., petitioner seeks quashing of proceedings in criminal case No. 242/96 pending against him in the Court of Judicial Magistrate, 1st Class, Bar, District Pali for the offence under section 138 of the Negotiable Instruments Act. (hereafter referred to as 'the Act').

(2.) THE petitioner filed an application before the trial Court under section 258 and 195(2) Cr.P.C. Subsequently on 5.6.1999, petitioner requested that application filed by him under section 258 Cr.P.C. be treated as an application under section 245 Cr.P.C. and requested for discharge in the aforesaid criminal case on the ground that the cheque issued by him in favour of non-petitioner No. 2 was undated and date has been inserted by the non- petitioner No. 2 and thereafter, the cheque was presented to the Bank which was dishonoured for want of fund. It was further prayed by application under section 195(2) Cr.P.C. the trial Court may lodge the complaint against the non-petitioner No. 2 for the offence punishable under sections 467, 468, 471 and 474 I.P.C. to prosecute the non-petitioner No. 2. The trial Court by a reasoned order dismissed both the applications filed by the petitioner. Aggrieved by the order impugned, petitioner has filed this criminal misc. petition under section 482 Cr.P.C. seeking quashing of criminal proceeding noticed above.

(3.) LEARNED counsel for the petitioner has relied on a judgment of Andhra Pradesh High Court reported in AIR 1986 (AP) 120, Jayantilal v. Zubeda Khanum. Learned counsel for non-petitioner No. 2 contended that insertion of date on undated cheque does not amount to material alteration and, therefore, the cheque was valid and on presentation to the Bank, it was dishonoured for want of fund (insufficient fund) and therefore, the petitioner has committed the offence punishable under section 138 of the Act and is being rightly tried for the said offence by the trial Court. He has relied on a judgment of Division Bench of Kerala High Court in Bhaskaran Chandrasekharan v. Radhakrishnan, 1998(4) RCR(Crl.) 341 (P&H) : 1998 Cr. L.J. 3228 and the judgment of Hon'ble Supreme Court in Ashok Yeshwant Badeva v. Surendra Madhavrao Nighojakar and another, 2001(2) RCR(Crl.) 165 (SC) : AIR 2001 SC 1315. In Bhaskaran Chandershekharan v. Radhakrishnan (supra), the only question came up for consideration before the Division Bench of Kerala High Court was as to whether insertion of a date on an undated cheque would amount to material alteration within the meaning of Section 87 of the Act ? Section 87 of the Act reads as under :