2025:HHC:27069-DB ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 480 of 2012. Reserved on: 04.08.2025. Date of Decision: 11.08.2025. Rajvir Singh ...Appellant. Versus Satinder Kumar ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 yes For the Appellant : Mr. Shivom Vashistha, Advocate, vice Mr. Hari Shyam Upadhyay, Advocate. For the Respondent : Mr. Ajay Sharma, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 04.04.2012, passed by learned Judicial Magistrate First Class, Court No. III, District Shimla, H.P (learned Trial Court), vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short “NI Act”). (Parties shall hereinafter be referred to in the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:27069-DB ) same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the complainant and the accused were known to each other. The accused borrowed ₹40,000/- from the complainant. The accused issued a cheque of ₹40,000/- dated 15.04.2011, drawn at Jammu & Kashmir Bank Ltd., The Mall, Shimla, in favour of the complainant to repay the amount. The complainant presented the cheque to his bank for its realisation. The complainant’s bank sent the cheque to the bank of the accused, however, the bank of the accused dishonoured the cheque with the remarks “funds insufficient”. The complainant served a notice upon the accused, asking him to repay the amount within 15 days from the date of receipt of the notice. The notice was duly served upon the accused, but the accused failed to repay the money. Hence, the complaint was filed before the learned Trial Court to take action as per the law. 3 2025:HHC:27069-DB ) 3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared before the learned Trial Court, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried. 4. The complainant examined himself (CW1) to prove his case. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., asserted that he had borrowed ₹20,000/- and repaid the same. He handed over a blank cheque to the complainant as security, and the complainant misused it. He examined himself (DW1) in defence. 6. Learned Trial Court held that the plea taken by the accused that he had issued a blank cheque as a security, which was misused by the complainant, was highly probable. There was a material alteration in the cheque regarding the date. The complainant asserted that this alteration was made by the accused, but the accused denied this fact. The material alteration made the cheque void under Section 87 of the NI Act, and discharged the complainant from his legal liability. 4 2025:HHC:27069-DB ) Consequently, the complaint was dismissed and the accused was acquitted by the learned Trial Court. 7. Being aggrieved by the judgment passed by the learned Trial Court, the appellant/complainant filed the instant appeal, asserting that the learned Trial Court erred in appreciating the material placed before it. The alteration was made by the accused. The cheque was dishonoured on the grounds of “insufficient funds” and not on the grounds of material alteration. Learned Trial Court erred in holding that the alteration in the cheque made it void. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr. Shivom Vashistha, learned vice counsel representing the appellant/complainant and Mr. Ajay Sharma, learned counsel, for the respondent/accused. 9. Mr. Shivom Vashistha, learned vice counsel for the appellant/complainant, submitted that the learned Trial Court dismissed the complaint on the ground of material alteration in the cheque. The cheque was dishonoured with an endorsement “funds insufficient” and not with an endorsement material 5 2025:HHC:27069-DB ) alteration. The alteration was attested by the initials put by the accused. Learned Trial Court failed to notice it and erred in dismissing the complaint. Hence, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr. Ajay Sharma, learned counsel for the respondent/accused, supported the judgment passed by the learned Trial Court. He submitted that the learned Trial Court had taken a reasonable view while dismissing the complaint, and this Court should not interfere with the reasonable view of the learned Trial Court. He prayed that the appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and reaches a conclusion that no reasonable person would have 6 2025:HHC:27069-DB ) reached based on the evidence led before the learned Trial Court. It was observed: “11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate, and reconsider the evidence upon which the order of acquittal is founded. 7 2025:HHC:27069-DB ) (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed, and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 8 2025:HHC:27069-DB ) 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) “8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity. 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 9 2025:HHC:27069-DB ) 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 13. A similar view was taken in Bhupatbhai Bachubhai Chavda v. State of Gujarat, 2024 SCC OnLine SC 523, wherein it was observed: - “6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on the evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. The Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn the order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further 10 2025:HHC:27069-DB ) strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself to the main question.” 14. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 15. It is apparent from the bare perusal of the cheque that the date 02.05.2009 has been changed to 15.04.2011. The cheque was dishonoured on 20.08.2011. A cheque could have been presented within 06 months as per Section 138 (a) of the NI Act, and the cheque issued on 02.05.2009 could not have been presented on 20.08.2011; therefore, the alteration made in the cheque was material. 16. It was laid down by the Andhra Pradesh High Court in Jayantilal Goel v. Zubeda Khanum, 1985 SCC OnLine AP 22: AIR 1986 AP 120: (1985) 2 AP LJ (SN 1) 10 that any alteration in the date of the promissory note is a material alteration. It was observed at page 122: “6. Now, a look at Ex. A.1 pro-note itself makes it appar- ent that the date, which is in a different ink that is, other than the ink that has been used for the body of the pro- note, is a subsequent introduction into the document. This insertion also amounts to ‘material alteration’, as it takes in not only a case where a certain thing which is al- ready written has been altered or erased, but also a new 11 2025:HHC:27069-DB ) insertion (see A. Subba Reddy v. Neelapa Reddi, AIR 1966 Andh Pra 267). xxxx 9. In Verco Pvt. Ltd. v. Newandram Naraindas, AIR 1974 Mad 4, it has been held that even a fresh insertion of the date or any other material particular will constitute material alteration within the meaning of S. 87 of the Negotiable Instruments Act. It is needless to multiply the case law on this point.” 17. It was further held that the burden to prove that the alteration was made with the consent of the drawer is upon the holder. It was observed at page 122: 7. The second aspect, which is more crucial, is — who should discharge the burden of proving that the docu- ment is materially altered. This, too, is well settled that the person who is in the custody of the document subse- quent to its execution, should there be any alteration, has to discharge the burden of establishing that it is not al- tered. 8. in A. Subba Reddy v. Neelapa Reddi, (AIR 1966 Andh Pra 267) (supra), this Court held:— “The general rule in English law followed in India is that a party having custody or control of a document produced in evidence must explain the alteration. When the instrument on its production appears to have been altered, it is a general rule that the party offering it in evidence must explain its appearance, because every alteration in the case of a negotiable in- strument renders it suspicious. It is only reasonable that the party claiming under it should remove the suspicion.” Further held: “It must be remembered that it is not any and every alteration that avoids the instrument. To have that effect, the alteration must be in a material particular. A 12 2025:HHC:27069-DB ) material alteration can be brought about by a change of date or time of drawing or of the place of payment or by a change in the sum payable, etc., etc. It is thus evident that the date of a promissory note is a material portion of it, and any alteration of such date will natu- rally avoid the promissory note, unless, of course, as stated in the section, such an alteration is made with the consent of the other party, or is made to effectuate the common intention of the original parties. It is wrong to assume that the date of the promissory note is merely a description. It indicates the time when the promissory note was executed. In most cases, the date is very material in calculating the date of the perfor- mance of the contract and more often fixing the period of limitation within which the plaintiff will have to in- stitute the suit on the foot of such promissory note. It is immaterial whether the alteration is made in the date or month, or year. Any such alteration being ma- terial must necessarily result in the avoidance of the promissory note” Also held: “where an instrument appears to be materially al- tered, the law naturally casts a heavy burden on the plaintiff to explain the alteration and show when it was made. Ordinarily, the party who presents a nego- tiable instrument which is an essential part of his case in an apparently altered and suspicious state, must fail, from the mere Infirmity or doubtful complexion of the instrument unless it can satisfactorily explain the existing state of the document…. The plaintiff, in his deposition, denies any correction. He has no explanation to offer in case it is found that the date appears to be materially altered. In the absence of any ex- planation on behalf of the plaintiff who seeks the en- forcement of the document, it is obvious that the plaintiff must fail, as the onus was on him to show that the mate- rial alteration was made either with the consent of the 13 2025:HHC:27069-DB ) parties or in order to effectuate the common intention of the parties.” In Halsbury's Laws of England, 4th Edition, 4th Volume, at para 459, it is stated: “Where an instrument, or if a bill the acceptance thereon, is materially altered without the assent of all the parties liable on it, the instrument is avoided as re- gards all the parties except any one who has himself made, authorised, or assented to the alteration, and those who have become parties to the instrument sub- sequent to the material alteration.” In para 460, it is further stated: “The following alterations are specifically declared to be material: any alteration of (1) the date: (2) the sum payable: (3) the time of payment: (4) the place of pay- ment, or the addition of a place of payment where one is mentioned by the acceptor, without the acceptor's assent.” 18. It was held in Narayan Prasad Rai v. Ghanshyamlal, 1960 SCC OnLine MP 141: ILR 1960 MP 999: AIR 1961 MP 62 at page 1002 that material alteration will make the instrument void. It was observed: “Section 87 of the Negotiable Instruments Act is as follows: “Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto. The plain meaning of this section, as it stands, is that if any material alteration is found in a negotiable instrument, the instrument itself becomes void, and the party basing its claim upon it is precluded from claiming 14 2025:HHC:27069-DB ) anything. This result follows irrespective of the fact whether the party concerned was responsible for the alteration or whether it was made by someone else without their consent or knowledge. This interpretation of the provision is hard on the innocent holder of the instrument. On the other hand, Shri R.K. Pandey contends that section 87 is attracted only if the alteration has been proved to have been made by the holder himself, and this fact must be pleaded and proved by the defendant. He went to the length of saying that in the instant case, even if the alteration had been made by the minor's next friend or guardian, it would not affect the claims of the minor. This interpretation is too narrow and is not justified by the wording of section 87. In our opinion, the correct interpretation of section 87 of the Negotiable Instruments Act is that the alteration which has the effect of making the instrument void should have been brought about by the plaintiff or by anyone with his consent or on account of his negligence. If the alteration is brought about by an accident, or by some stranger who came in possession of the instrument in an unauthorised manner, then the instrument would not be rendered void.” 19. It was further held that the burden to prove that the alteration was made by the signatory is upon the holder of the instrument. It was observed: “Shri R.K. Pandey contended that it was necessary for the defendant to plead that the alteration was brought about by the plaintiff himself or by someone with his consent. In the absence of such pleadings, no relief should be granted to the defendant on the ground that the instrument has been materially altered. We find that the law on the point is just the contrary, as would appear from the following 15 2025:HHC:27069-DB ) passage occurring in Bhashyam's Negotiable Instruments Act (Tenth Edn., 1956) at page 452: “Where the instrument appears to be altered, it is incumbent upon the plaintiff (i.e. the holder) to show that the alteration is not improperly made, and the presumption in the case of negotiable instruments is that the alteration was made subsequent to the issue of the instrument; while in the case of deeds, etc., the presumption is the other way. Where a bill appears to have been altered, or there are marks of erasure on it, the party seeking to enforce the instrument is bound to give evidence that it is not avoided thereby.” The burden of pleading or proving how the alteration came in the instrument is thus on the plaintiff. In Petamber Manik-Jee v. Motee-Chund Manik-Jee [(1836- 37) 1 Moo IA 420.] the following observations were made regarding the burden of proof in such cases: “If a plaintiff relies on a bond in this country, or any other instrument, which appears to have been altered, the Court will not receive it, or act upon it, till it is most satisfactorily proved by all the subscribing witnesses at the least, and other evidence, that alteration was made antecedently to Signature.” The obvious implication of these observations is that if no such proof is forthcoming, the alteration shall be presumed to have been made after the instrument was executed. To the same effect is the following passage in Mst. Khoob Conwur v. Baboo Moodnarain Singh [(1861- 64) 9 Moo IA 1.]. “It may be conceded that, in an ordinary case, the party who presents an instrument, which is an essential part of his case, in an apparently altered and suspicious state, must fail, from the mere 16 2025:HHC:27069-DB ) infirmity or doubtful complexion of his proof, unless he can satisfactorily explain the existing state of the document.” Although their Lordships held that the presumption may be rebutted by the appearance of the document itself, but the principle laid down obviously is that he who produces an altered document must prove how the alteration was made. The same view has been consistently taken by this Court. In Kanhayalal v. Sitaram [20 NLR 76], it was held that a material alteration made by, or with the consent of, one party, but without the consent of the other party, makes the instrument void and disentitles the party responsible for the alteration from enforcing it. The Court observed in that case that where the plaintiff relies upon an altered or suspicious instrument, “the law casts a heavy onus on him to explain the alteration and to show when it was made”. The following observations from Halsbury's Laws of England, Volume 10, sections 764 and 765, at page 431, were relied upon: “An alteration made while the instrument is in the custody of one party, not made with his knowledge or consent, has the same effect in avoiding the instrument as if made by him, on the principle that he who has the custody of an instrument made for his benefit is bound to preserve it in its original state.” In Pachkodi's case (supra), the same view has been taken regarding the burden of proof by observing that: “These documents were altered in his possession and were produced from his custody. He had to explain when and how the alteration was made.” We have no doubt that the burden of proving how the alterations were made in the document lies on the plaintiff, and in the absence of any proof, it should be presumed that they were made by him or by his next 17 2025:HHC:27069-DB ) friend, who was in custody of the document. The view which we have taken does not go against the Madras decisions relied upon by the appellant. Although the single Judge had stated his conclusion somewhat widely, the Division Bench definitely concluded that the instrument would be saved from becoming void only if the material alteration was made by a stranger without the consent of the holder. In that case, the natural father, who was suspected to have made the changes, was a stranger inasmuch as the pro-note was in favour of the adoptive father, and the adoptive mother was acting as the legal guardian. In the instant case, the pro-note has all along been in the custody of the minor plaintiff's father, who also acted as the next friend of the minor when the suit was filed. Under these circumstances, according to the statement of law quoted from Halsbury's Laws of England in paragraph 13 above, the presumption that the alteration was made by the plaintiff's father or by someone with his consent had to be rebutted by the plaintiff.” 20. It was held in C. Sonamuthu v. R. Barsha Beevi, 2013 SCC OnLine Mad 386: (2013) 1 MWN (Cri) DCC 113 that any material alteration in the instrument will make it void. It was observed: 16. At this juncture, this Court aptly quotes the decision, T. Kalavathi v. Veera Export, 2002 BC 1247 Mad., wherein it is held that “where material alteration made by the Accused in Negotiable Instruments Act, after the expiry of the period of validity, it would render the said instruments void, hence the Complaint on the basis of invalid, Negotiable Instruments Act could not be maintained.” 18 2025:HHC:27069-DB ) 17. The effort of Section 87 of the Negotiable Instruments Act is that such a document is void and, as such, non-est. The technical defence or absence of a plea should not drive the Court on such an occasion, especially with reference to the contention and evidence. 18. Ordinarily, any material alteration of a Negotiable Instrument renders the same void as against anyone 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. Any such alteration, if made by an endorsee, discharges his endorser from all liability to him/her in respect of the consideration thereof in the considered opinion of this Court. 21. It was held that an alteration in the Negotiable Instruments Act, if it changes its legal character, is a material alteration. It was observed: “24. An alteration of a Negotiable Instrument is material if it changes its legal character or its scope as means of evidence, in the considered opinion of this Court. Integrity and sanctity of contracts are to be preserved, and the object is to prevent fraud and deter persons from tampering with the written instruments. Where an instrument appears altered, it is the primordial duty on the part of the Plaintiff to show that the alteration was not improperly made as per the decision in Jayantilal Goel v. Zubeda Khanum, AIR 1986 AP 120. xxxxxx 26. In law, the following are declared to be Material Alterations: (i) the date, (ii) the sum payable, (iii) the time of payment, (iv) the place of payment, (v) the addition of a place of payment mentioned by the acceptor 19 2025:HHC:27069-DB ) without the acceptor’s consent.” Therefore, the burden was upon the complainant to prove that the alteration was made by the accused. Once it is apparent that the words have been added to the name of the payee. 22. In the present case, the accused Satinder (DW1) admitted his signatures on the cheque (Ex-CW1/A) inside the red circle “A” but specifically denied his signatures inside the red circle “B” of the cheque. The circle “B” contains the initials stated to have been put by the accused. Since the accused denied on oath that he had put the initials on the cheque, therefore, the burden would shift upon the complainant to establish that the alteration was with the consent of the accused. 23. The complainant nowhere stated in his examination- in-chief that the accused had altered the date and had put his signatures to authenticate such an alteration. He admitted in his cross-examination that the date of the cheque was altered from 02.05.2009 to 15.04.2011. He volunteered to say that this alteration was made by the accused. This fact was denied by the accused on oath. The complainant did not make any prayer to compare the initials inside the red circle “B” with the initials of the accused. Thus, the burden placed upon the 20 2025:HHC:27069-DB ) complainant to show that the alteration was made by the accused and was duly authenticated by him was not discharged by him; hence, the learned Trial Court had taken a reasonable view while holding that there was a material alteration in the cheque which would make the same void. 24. It was submitted that the cheque was not dishonoured because there was a material alteration, but because the funds were insufficient. This submission will not help the complainant. Section 87 of the NI Act makes an instrument containing a material alteration void, which means that such an instrument cannot be enforced by the Court. Therefore, even if the cheque was not dishonoured on the ground of material alteration, the Court cannot ignore the material alteration because doing so would be acting contrary to the provisions of Section 87 of the NI Act, which is impermissible. 25. No other point was urged. 26. In view of the above, the present appeal fails, and the same is dismissed. 21 2025:HHC:27069-DB ) 27. A copy of the judgment and the record of the learned Trial Court be sent back forthwith. (Rakesh Kainthla) Judge 11th August 2025 (Shamsh Tabrez)