Exports Vs. T. Kalavathy  Insc 585 (2 November 2001)
Thomas & S.N. Variava S. N. Variava, J.
appeals are against the Judgement of a single Judge of the Madras High Court by
which the criminal proceedings launched by the appellant under Section 138 of
the Negotiable Instruments Act have been quashed.
stated the facts are as follows:
Respondent had issued to the Appellants 8 cheques, bearing various dates from 9th April, 1995 to 30th April, 1995, for a sum totalling Rs. 4 lacs.
were presented for payment on 15th May, 1995
but were dishonoured. It is the case of the Appellant that the fact of dishonour
was brought to the notice of the Respondent and that the Respondent then
requested for more time to pay. The Appellants claim that they granted her more
time to pay. The Appellants claim that as the Respondent still could not pay
the amounts, in January 1996, she changed the date of the cheques from 1995 to
1996. The Appellants claim that the Respondent also made the necessary
endorsement on the cheques at that time. The Appellant claim that the
Respondent then requested the Appellant to present the cheques after a period
of three months.
were again presented on 18th
July, 1996 and were dishonoured.
A legal notice dated 8th
August, 1996 was
served upon the Respondent. The Respondent, by her reply dated 23rd August, 1996, alleged that she had been forced
to change the dates against her will. She also took up some other contentions.
The Appellant then filed a complaint under Section 138 of the Negotiable
Respondent thereafter filed a petition in the High Court of Madras to quash the
complaint. By the impugned order dated 24th November, 2000, the High Court has quashed the
complaint. Hence this Appeal.
impugned judgment it has been held that the defence that the alteration in the
date was not made voluntarily was a question of fact which would not constitute
a ground for quashing the complaint. However, after so holding correctly, the
Court goes on to state that the validity period of a cheques is only 6 months.
It was held that the validity period of all the 8 cheques had already expired
by October, 1995, and then held that once the validity period was over, the cheques
could not be re-validated by altering the dates so as to give fresh life to the
cheques for another 6 months.
held that in law, a cheque which has become invalid because of the expiry of
the stipulated period could not be made valid by alteration of dates.
view this reasoning is entirely fallacious. There is no provision in the
Negotiable Instruments Act or in any other law which stipulates that a drawer
of a negotiable instrument cannot re-validate it. It is always open to a drawer
to voluntarily revalidate a negotiable instrument, including a cheque.
High Court has also placed reliance on Section 87 of the Negotiable Instruments
Act, which reads as follows :
Effect of material alteration - Any material alteration of a negotiable
instrument renders the same void as against any one who is a party thereto at
the time of making such alteration and does not consent thereto, unless it was
made in order to carry out the common intention of the original parties;
by indorsee - Any such alteration, if made by an indorsee, discharges his indorser
from all liability to him in respect of the consideration thereof.
provisions of this section are subject to those of sections 20, 49, 86 and
125." The first paragraph of Section 87 makes it clear that the party who
consents to the alteration as well as the party who made the alteration are
disentitled to complain against such alteration, e.g. if the drawer of the cheque
himself altered the cheque for validating or revalidating the same instrument
he cannot take advantage of it later by saying that the cheque became void as
there is material alteration thereto. Further, even if the payee or the holder
of the cheque made the alteration with the consent of the drawer thereof, such
alteration also cannot be used as a ground to resist the right of the payee or
the holder thereof. It is always a question of fact whether the alteration was
made by the drawer himself or whether it was made with the consent of the
drawer. It requires evidence to prove the aforesaid question whenever it is
held by the High Court that a change of date is a material alteration which
affected the interests of the Respondent. It is held that the Respondent not
being a willing party to the said alteration, the cheques were void as
contemplated by Section 87 of the Negotiable Instruments Act. At this stage
there is no basis for arriving at such a conclusion. In the earlier part of the
impugned Judgment it has been correctly held that this is a question of fact.
This is a fact which will have to be established on evidence during trial. At
this stage the High Court could not have quashed the complaint merely on the
basis of an assertion in the reply.
the circumstances the impugned order is set aside. The Petition filed by the
Respondent stands dismissed. The Judicial Magistrate II, Karur shall now
proceed with the complaint in accordance with law.
Appeal stands disposed of accordingly. There shall be no Order as to costs.
VARIAVA) November 2, 2001.