Excelsior Correspondent
SRINAGAR, Jan 19: The High Court has held that if the cheque drawer intentionally appends altered signatures on the cheque with the intent to prevent the cheque to be honoured by the bank, the offence under Negotiable Instrument (NI) Act would attract against him.
Justice Sanjay Dhar dismissed the plea of accused-cheque drawer challenging the order passed by the trial court whereby cognizance has been taken in a complaint against him for commission of offence under NI Act.
The accused-Abdul Hamid Wani, has challenged the complaint filed by the respondent-Abdul Hamid Lone against him for offence under Section 138 of the Negotiable Instruments Act.
The accused-Wani has also challenged the order passed by the Additional Mobile Magistrate Shopian, whereby cognizance of the offence has been taken and process has been issued against the petitioner-accused by the trial Magistrate, after framing a prima facie opinion that he has committed offence under Section 138 of the Negotiable Instruments Act.
The complaint by one Abdul Hamid Lone alleging commission of offences under Sections 138 and 142 of the Negotiable Instruments Act against the accused-Wani has been filed before the trial Magistrate asserting therein that the accused owed him a sum of Rs.14 lakhs and, towards discharge of this liability, had issued a cheque and upon presentation, the cheque was returned unpaid with the endorsement ‘alterations require drawer’s authentication’ by the bank concerned.
The aggrieved complainant states that despite issuance of a statutory demand notice, the amount remained unpaid, leading to the filing of a complaint. The Magistrate, upon forming a prima facie opinion, took cognizance and issued process against the accused.
Justice Dhar while holding the trial court the complaint as also the order passed therein by the trial court as legally valid, made it clear that if a drawer intentionally appends a different signature on the cheque, which does not match the specimen signature available with the bank, the offence under Section 138 would be constituted against him.
“The same principle applies where a drawer deliberately makes overwriting or alterations in the cheque whether in the amount or the date without authenticating such changes, with the intent to frustrate payment”, the court said adding with “The issue as to which of the parties has made alteration in the cheque is a question of fact which can be determined only during trial”.
The alteration court added, which has been made in the cheque pertains to the amount mentioned therein and, as such, it is a material alteration, however, the question remains as to who was responsible for making this alteration.
“If the said alteration has been made by the accused-drawer of the cheque with a view to defeat the proposed proceedings under Section 138 of the Negotiable Instruments Act against him, he cannot be absolved of his liability for prosecution but if such alteration has been made by payee of the cheque with a view to take undue benefit, the situation may be different”, reads the judgment.
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