Acquittal of Accused-opinion of forensic and hand writing expert

Madras High Court
Amaravathi Chits Investments By … vs T.M. Vaidayanathan on 28 October, 2004
Equivalent citations: IV (2005) BC 142, 2005 CriLJ 576
Author: S S Hussain
Bench: S S Hussain

JUDGMENT

S. Sardar Zackria Hussain, J.

1. The appellant is the complainant and the appeal is filed against the order of acquittal of the respondent/accused in C.C.No.1867 of 1994 on the file of the VII Metropolitan Magistrate, George Town, Madras, as per judgment dated 17.6.1996 for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’).

2. The private complaint was filed by the complainant stating that the complainant Amaravathi Chits and Investments is a partnership firm and the accused borrowed money from the complainant and in discharge of the same, he issued a Cheque No.991836 dated 26.12.1993 drawn on Indian Overseas Bank, Triplicane, for a sum of Rs.50,000/-. The accused requested the complainant to present the cheque by the end of February 1994 and when the cheque was presented for collection on 01.3.1994, it was returned with endorsement “insufficient funds”. After return of the cheque, the complainant contacted the accused and asked him to pay the amount but he was evasive and, therefore, lawyer’s notice was issued on 07.3.1994, which was served on the accused on 10.3.1994. Since the amount was not paid, the complaint was filed on 08.4.2004, which was taken on file under Section 138 of the Act.

3. During enquiry, the complainant examined the Power of Attorney Padmanabhan as P.W.1 and 2 other witnesses as P.Ws.2 and 3 and marked Exs.P.1 to P.6. On the side of the accused, one Scientific Assistant of the Forensic Science Laboratory was examined as D.W.1 and Exs.D.1 to D.3 were marked. The trial Court, considering such evidence adduced on either side, recording finding that there have been material alteration in the cheque Ex.P.1 issued by the accused and the complainant has not proved the issuance of cheque by the accused in the complaint as well the cheque was issued for the discharge of any debt or liability to the complainant firm and, therefore, the complainant has not proved the offence under Section 138 of the Act, acquitted the accused under Section 255(1) of the Code of Criminal Procedure. The said judgment is challenged by the complainant in this appeal.

4. Heard the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused.

5. Learned counsel for the appellant argued that the disputed cheque was given to the complainant in discharge of the amount due showing the name of the appellant as Amaravathi Chits and Investments and as such, the cheque was not given to one Arjun Amaravathi Chits Private Limited, as urged by the learned counsel for the accused. Learned counsel further submitted that there have been no insertion or material alteration by putting the number ‘1’ before ‘2’ in respect of the month. Learned counsel also contended that though it is claimed by the accused that such insertion or material alteration has been made in the cheque to make the cheque valid for the purpose of limitation, no reply has been sent by the accused for the lawyer’s notice caused despite the fact that it was served on the accused. The complainant is not running any chit company and he is not conducting any chit.

6. Learned counsel for the respondent/accused argued that the cheque was not issued to the complainant and it was actually issued only to one Arjun Amaravathi Chits and Investments in the year 1992 and repayment of the same was already over and no amount was due in the particular chit in Arjun Amaravathi Chit Account and the cheque issued to the said chits have been wrongly misused by the complainant by making material alteration in the date and in the body of the cheque. In this regard, learned counsel also submitted that the accused filed Criminal M.P. No.2077 of 1995 to send the cheque Ex.A.1 (Cheque No.991836) to the Forensic Department for obtaining the expert’s opinion and the Scientific Assistant D.W.1. also, in support of the case of the accused, has stated in the report Ex.D.3 that the person, who has written S34, has not written S1 and that in the date of cheque, the number ‘1’ has been inserted with different ink and Q1 and Q2 have been written in ink whereas Q3 to Q5, signature and writing, are all done by using ball point pen. So the learned counsel vehemently contended that in the cheque the date 25.02.1993 is altered by inserting ‘1’ before ‘2’ in the month and as such, the cheque has been materially altered so as to make it appear that it was issued on 25.12.1993 and that it is a valid cheque for the purpose of limitation.

7. P.W.1 has stated in his evidence that in the year 1992, the accused borrowed a sum of Rs.50,000/- from the complainant firm and to discharge the same, he gave the cheque Ex.P.1 on 25.12.1993. In the cross-examination, he has admitted that they are running the chit transactions and also advancing loan amount. They used to obtain promissory notes at the time of advancing the loan amount and if necessary, the complainant can file the promissory note of Rs.80,000/- lent to the accused out of which he paid Rs.30,000/- and after several demands, to pay the balance amount, the accused gave the cheque Ex.P.1 in December 1993. It is further stated in the cross-examination that in the cheque Ex.P.1, the accused had written the amount and after signing the cheque, he gave it to him and P.W.1 had written the name of the complainant firm and also filled up the date. It is also his evidence that Arjun Amaravathi Chits Private Limited is the sister concern of the complainant firm and the said firm had sent letter Ex.D.2 on 06.8.1992 to the accused in which the accused was a subscriber. In the notice Ex.P.4 dated 07.3.1994, it is stated that the accused borrowed a sum of Rs.50,000/- from the complainant firm on 05.7.1992 by executing promissory note for the said amount and after several demands, the accused issued cheque Ex.A.1 on 25.12.1993. The notice was not replied. The accused has denied the case of the complainant that he borrowed amount and issued cheque to the complainant firm. Though as per notice Ex.P.4, the accused borrowed Rs.50,000/- for which he also executed promissory note, it is the evidence of P.W.1 that Rs.80,000/- was lent to the accused to which Rs.30,000/- was paid and for the balance amount, the cheque Ex.P.1 was issued. It is also admitted by P.W.1 in his cross-examination that in the same address one other firm in the name of Arjun Amaravathi Chits Private Limited is also running in which the accused was a subscriber. In respect of the chit subscribed by the accused, admittedly D.2 auction notice dated 06.8.1992 was issued in which the chit value is mentioned as Rs.50,000/-. Therefore, there is some force in the argument advanced by the learned counsel for the respondent/accused. Though for the said chit transaction, cheque Ex.P.1 was issued, in the affidavit filed in support of the Criminal M.P.No.2078 of 1995 filed before the VII Metropolitan Magistrate, the accused has denied the liability as claimed by the complainant in respect of the cheque Ex.P.1. It is stated that the cheque was issued to one Arjun Amaravathi Chits but the same was wrongly misused by the complainant. In the affidavit also, it is stated that there is alteration with regard to the date of cheque and also in the body of the cheque. The hand writing expert D.W.1 has filed report Ex.D.3 and also stated in his evidence that in the cheque Ex.P.1, the writings Q1 and Q2 were made by using ink whereas Q3 to Q5 were made by using ball point pen and in the writing marked as Q1, there is a decolourisation of the figures 1993 and the figure ‘1’ in the month 25.12.1993 marked as Q1, has been inserted with different ink. Therefore, as rightly argued by the learned counsel for the accused and as rightly pointed out by the Metropolitan Magistrate, there have been material alteration in the date of cheque by adding ‘1’ before ‘2’ in the month to make it appear that the cheque was issued on 25.12.1993 so as to bring the cheque within the validity period for the purpose of limitation. The trial Court, considering all these aspects and recording finding that there have been material alteration in the month by adding ‘1’ before ‘2’ for the purpose of limitation and that the complainant has not proved the liability in respect of the cheque issued, rightly acquitted the accused as the offence under Section 138 of the Act is not made out. As such, there is no reason to interfere with the said judgment.

8. In the result, the appeal fails and the same is dismissed and the judgment passed by the VII Metropolitan Magistrate, George Town, Madras, is confirmed.

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