P.M. Muhammed Basheer v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 9TH DAY OF JANUARY 2012/19TH POUSHA 1933** ## **CRA.No. 743 of 2004 ( )** ## **----------------------AGAINST THE ORDER/JUDGMENT IN ST.1428/1995 of J.M.F.C., ETTUMANUR** **---------------** ## **APPELLANT(S)/COMPLAINANT:** **------------------------** **P.M.MUHAMMED BASHEER, PARAYIL HOUSE, VENGALLOOR P.O., THODUPUZHA.** **BY ADV. SRI.T.I.ABDUL SALAM** **RESPONDENT(S)/STATE AND ACCUSED:** **--------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. A.SADASIVAN, METRONIX ENGINEERS AND CONSULTANTS, CASIL GUARDANS, POOJAPPURA P.O. THIRUVANANTHAPURAM.** **R2 BY SRI.R.S.KALKURA PUBLIC PROSECUTOR SRI.SREEJITH V.S.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** **N.K.BALAKRISHNAN, J. -------------------------------Crl.A. No.743 of 2004 ------------------------------Dated this the 9[th] day of January 2012** ## **J U D G M E N T** Complainant is the appellant. The complaint was filed under Sec.138 of N.I.Act which ended in acquittal under Sec.255 (1) Cr.P.C. According to the complainant Ext.P1 dated 3.10.1994 was issued by the accused to discharge a sum of Rs.1,12,523/due from him to the complainant. According to the complainant, he was a Sub-Contractor under the accused and Ext.P1 was issued to discharge a liability which on presentment was bounced due to insufficiency of funds and “account closed”. Statutory notice was sent. But, the amount was not paid. Hence, the complaint was filed. 2. The accused contended that after retirement from Army he had undertaken certain contract work with KSEB during 1992-1994. He had entered into a contract with the complainant to carry out certain work at Kakkayam in Kozhikode under K.T.R. Scheme in the KSEB. Ext.D1 agreement was entered into between the accused and the complainant. The Crl.A. No.743 of 2004 -: 2 :- complainant had undertaken to carry out the work in a time bound manner without committing any default. He did not carry out the work as agreed upon. He left the contract work and sold away the materials entrusted to him for work. It was specifically contended by the accused that Ext.P1 cheque is unenforceable as it was materially altered. 3. Before the court below, the complainant got himself examined as PW1 and Exts.P1 to P6 were marked. The expert who examined the disputed cheque was examined as DW1 and Exts.D1 to D5 were marked. Exts.C1 to C4 and C5 were also marked. The court below found that the allegation made by the complainant that Ext.P1 was signed and issued by the accused to the complainant is not true. It was further found that Ext.P1 was tampered with. Since there is material alteration, rendering the cheque invalid and unenforceable the accused was found not guilty and he was acquitted under Sec.255(1) Cr.P.C. 4. Learned counsel for the complainant/appellant submits that the expert has not come to a definite conclusion that Ext.P1 was materially altered so as to render it invalid and unenforceable. The photographs produced before the court Crl.A. No.743 of 2004 -: 3 :- were not proved. DW1 was also not in a position to say that what is the chemical alleged to have been used for making the handwriting indecipherable. It is further argued that even according to the accused there was a work contract between him and the complainant and thus the evidence would probabilise the case of the complainant that Ext.P1 was issued by the accused in connection with the said contract work and as such the court below should not have relied upon Ext.D5 report to give a verdict of acquittal in favour of the accused. 5. Learned counsel for the accused would support the findings entered by the courts below. The learned counsel would submit that the evidence available on record would clearly show that the complainant did not carry out the work as promised and that if any amount was due to him the complainant would have sent a notice to the accused calling for the details as to the account pertaining to the contract work or he would have stated as to what was the work he actually carried out and what was the amount he was entitled to get from the accused. No notice was sent pertaining to the same. The evidence would show that the complainant had left the contract work. There was also Crl.A. No.743 of 2004 -: 4 :- allegation that he had sold away the construction materials. It is argued by the learned counsel for the accused that no material alteration of Ext.P1 - rendered the instrument void. The evidence of DW1 and Ext.D5 did unmistakably prove that Ext.P1 was materially altered and so the complainant cannot rely upon Ext.P1 to sustain his case. 6. Before going to the evidence regarding the work contract and the failure on the part of the accused to carry out the work it is sufficient if the main point regarding the material alteration projected by the court below to non-suit the complainant is adverted to. DW1 the expert has proved Ext.D5 report. The expert has narrated the instances of erasures, tampering etc found on Ext.P1. It was stated that the obverse and reverse sides of Ext.P1 were examined with Stereo Microscope under direct and oblique light and with Video Spectral Comparator (VSC) using blue light, I.R. Light and U.V. Light at different wave lengths to detect any erasures or alterations and to decipher the erased writings, if any. The observations of DW1 and the findings arrived at by him on each of the aspects as mentioned in Ext.D5 could not be assailed at Crl.A. No.743 of 2004 -: 5 :- all. It was observed by him in Ext.D5 that, on examination, it was seen that there could be erasures at the top portion of the cheque, above the red enclosed writing stamped and marked U1. The erased writings could be deciphered as 'Under Rs Three Thousand only' and a signature signed after these words. There are erased writings which could be deciphered as “to, S” seen close to the printed word 'pay' in the red enclosed writing marked U1. Other writings, if any, after the letter 'S' could not be deciphered. In the existing figure '3.10.94' in the red enclosed area marked U2, out lines of a figure which could be '7' is seen below the existing figure '3' representing date. There are some outlines of a figure, probably '3', could be seen below the existing figure '10' representing month. A stroke is also seen below the down-ward stroke of the existing figure '9'. On examination, there are signs to suggest that beneath the existing figure 1,12,523/- in U3, there are outlines/remnants of another figure which could be read as 1000/-. There are some faint outlines and indendation of some letters beneath the words 'One Lakh twelve thousand' in the red enclosed area marked U3. However, these could not be deciphered to any degree of Crl.A. No.743 of 2004 -: 6 :- accuracy. On the reverse side of the Ext.P1 cheque in the red enclosed area marked U4, there are faint impressions of a writing and a signature. The writings could be deciphered as 'Issued for a sum under Three thousand only'. It is pointed out by the learned counsel for the accused that keeping the obverse and reverse side of Ext.P1 against light some writings which were tampered with can be seen even by a naked eye. 7. The learned counsel for the complainant would submit that even according to DW1 there was no physical erasion and what exactly was the chemical used for causing erasion or tampering was not be stated by DW1 and as such the court cannot place implicit reliance on the evidence given by DW1 to hold that there was tampering. Relying upon the Apex Court decision in **Murari Lal S/o Ram Singh** v. **State of Madhya Pradesh** [1980 AIR 531] the learned counsel for the appellant submits that over much importance cannot be given to the opinion expressed by the expert since it was only an opinion. It is a case where the expert has furnished his opinion and has furnished the details as mentioned above to hold that there are materials to find that there was tampering. Therefore, the Crl.A. No.743 of 2004 -: 7 :- contention that the evidence given by DW1 and Ext.D5 should be discarded is found to be unmerited. The complainant could not have controverted the evidence given by DW1 by citing any other witness or by producing any other material. Even the oral evidence of DW1 would throw light on the tampering of Ext.P1. In the light of what is stated above, the court below was perfectly justified in holding that Ext.P1 is invalid and unenforceable in view of the embargo contained in Sec.87 of the N.I. Act. That Ext.P1 was tampered with is of much importance in this case since it is sufficient to hold that there was material alteration affecting the validity of Ext.P1. As such I hold that the findings to that effect entered by the learned Magistrate is perfectly correct. Therefore, the verdict of acquittal passed by the learned Magistrate is confirmed. In the result, this Crl.A. is dismissed. **N.K.BALAKRISHNAN,** **J UDGE.** Jvt