Abdul Hamid Wani Vs Abdul Hamid Lone (Jammu And Kashmir And Ladakh High Court)
Cheque Tampering Not A Safe Exit: Material Alteration To Block Payment Attracts S.138; ‘Who Altered’ Must Be Decided At Trial
Altered Cheque and Section 138: Forgery Plea Cannot Short-Circuit Criminal Trial- Cheque Dishonour Due to Alteration: Forgery Allegation Cannot Defeat Section 138 at Threshold Stage
The Jammu & Kashmir and Ladakh High Court was seized of a petition seeking quashing of a complaint and summoning order passed under Section 138 of the Negotiable Instruments Act, where the cheque for ₹14 lakhs was dishonoured with the remark “alterations require drawer’s authentication.”
Assessee / Accused’s Case:
The petitioner contended that the cheque had been forged and materially altered by the complainant by converting the figure “₹14,000” into “₹14.00 lakhs.” It was argued that the petitioner had sufficient balance and that the dishonour occurred not due to insufficiency of funds but because of fraudulent alteration by the payee, rendering the instrument void under Section 87 of the Negotiable Instruments Act. On this basis, it was pleaded that no offence under Section 138 was made out and that the criminal proceedings deserved to be quashed at the threshold.
Complainant’s Position
The complainant maintained that the cheque was issued towards discharge of a legally enforceable debt of ₹14 lakhs and that dishonour on account of unauthenticated alteration squarely attracts Section 138. It was also emphasised that the accused, despite receiving the statutory demand notice, did not reply or raise any protest regarding alleged forgery or alteration, thereby weakening his defence at the preliminary stage.
Court’s Analysis & Findings:
The Court, relying heavily on the Supreme Court decisions in Lakshmi Dyechem v. State of Gujarat and Veera Exports v. T. Kalavathy, held that dishonour on grounds other than insufficiency of funds can still fall within Section 138 if the act or omission of the drawer is intended to prevent honour of the cheque. The Court observed that material alteration in the amount is covered by Section 87, but the crucial issue is who made the alteration—the drawer or the payee—which is a pure question of fact requiring evidence.
It was further noted that if the drawer himself alters the cheque to avoid payment, prosecution is clearly maintainable; whereas if the payee alters it without consent, the defence may succeed—but only after trial. The failure of the accused to respond to the statutory notice was treated as a significant circumstance justifying continuation of proceedings.
