Unauthenticated Cheque Alteration Invites Section 138 | HC

Case Details: Abdul Hamid Wani vs. Abdul Hamid Lone - [2025] 181 taxmann.com 807 (HC - Jammu & Kashmir and Ladakh)

Judiciary and Counsel Details

• Sanjay Dhar, J.
• Mudasir Bin Hassan, Adv. for the Petitioner.

Facts of the Case

In the instant case, the Respondent/complainant filed a complaint alleging the commission of an offence under section 138 of the Negotiable Instruments Act, 1881, against the petitioner/accused.

In the complaint, it was alleged that the petitioner owed Rs. 14 lakhs to the respondent and, in connection with the liquidation of said amount, he had issued a cheque. When the cheque was presented for encashment, it was returned unpaid with the remark ‘alterations require drawer’s authentication’.
The Respondent filed a complaint alleging the commission of an offence under section 138 of the Act, and the Magistrate, by the impugned order, held that the petitioner had committed an offence under section 138 of the Act.
The petitioner had challenged the impugned complaint and impugned order on the ground that the cheque in question was forged and that the act of forgery had been committed by the respondent.

It had been submitted that alterations in the amount mentioned in the cheque had been made by the respondent/complainant. Further, the alteration which had been made in the cheque pertained to the amount mentioned therein and, as such, it was a material alteration.

High Court Held

The High Court observed that if the accused drawer had made said alteration of the cheque with a view to defeating proposed proceedings under section 138 against him, he could not be absolved of his liability for prosecution. Still, if the payee had made such an alteration of the cheque with a view to taking undue benefit, the situation might be different.

Further, so long as an act or omission on the part of the drawer of the cheque is intended to prevent the cheque from being honoured, dishonour would become an offence under section 138 of the Act.

The High Court held that the issue as to which of the parties had made an alteration in the cheque was a question of fact which could be determined only during the trial of the case and, therefore, the petition was to be dismissed, leaving it open to the petitioner to project the contentions raised by him in the instant petition before the trial Magistrate.

Further, the High Court held that in a case where a drawer intentionally, with a view to preventing the honour of the cheque, makes overwriting/alterations in the cheque, either in the amount mentioned in the cheque or in the date mentioned therein, without authenticating these overwritings or alterations, an offence under section 138 of the Act would be attracted.

List of Cases Reviewed

• Veera Exports v. T. Kalavathy [2002] 38 SCL 665 (SC) [Para 14]; followed

List of Cases Referred to

• Lakshmi Dyechem v. State of Gujarat (2002) 1 SCC 97 (para 10) and Veera Exports v. T. Kalavathy [2002] 38 SCL 665 (SC) (para 14).