MARY JAMES vs GIGI JOSE AND ANOTHER

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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
ND
TUESDAY, THE 2 DAY OF JUNE 2026 / 12TH JYAISHTA, 1948
CRL.A NO. 1991 OF 2007
AGAINST ORDER/JUDGMENT DATED IN CC NO.1017 OF 2005
OF JUDICIAL MAGISTRATE OF FIRST CLASS -I (FOREST
OFFENCES), THODUPUZHA
APPELLANT/COMPLAINANT:
MARY JAMES
W/O.JAMES, KUNNATHU HOUSE,
CHEENIKUZHI,UDUMBANNOOR VILLAGE,THODUPUZHA.
BY ADV SRI.UNNIKRISHNAN.V.ALAPATT
RESPONDENTS/ACCUSED AND STATE:
1 GIGI JOSE, EDANACKAPARAMBIL, NEYYASSERY P.O.,
NEYYASSERY VILLAGE,THODUPUZHA.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
SRI.RENJITH B.MARAR
SRI.L.RAJESH NARAYAN
SR PP VIPIN NARAYAN .A
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
02.06.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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CR
JUDGMENT
nd
Dated this the 2 day of June, 2026
The complainant in C.C.No.1017/2005 on the files of
the Judicial First Class Magistrate Court-I, Thodupuzha has
filed this criminal appeal, challenging the judgment of
acquittal dated 27.11.2006 in the above case.
2. Heard the learned counsel appearing for the
appellant/complainant and the learned Public Prosecutor
nd
appearing for the 2 respondent–State of Kerala. No
st
representation for the 1 respondent/accused, despite
service of notice.
3. I shall refer the parties in this appeal as
'complainant' and 'accused' for easy reference.
4. Coming to the prosecution allegation,
Ext.P1 cheque dated 20.09.2005 for 55,000 (Rupees fifty ₹
five thousand only), allegedly issued by the accused to the
complainant in discharge of the said liability, when presented

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for encashment through Kodikulam Service Co-operative
Bank got dishonoured for two reasons, viz., (1) alteration in
date and (2) requires full signature as per Ext.P2 memo
dated 06.10.2005. Despite issuance of legal notice, the
accused failed to repay the amount and accordingly, the
complainant preferred the complaint alleging commission of
offence under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter referred to as ‘NI Act’ for short) by the
accused.
5. The trial court took cognizance for the said
offence and proceeded with trial. During trial, PW1 was
examined and Exts.P1 to P6 were marked on the side of the
complainant. No evidence let in by the accused.
6. The trial court, on appreciation of evidence,
acquitted the accused, and it was founded by the learned
Magistrate that even though there was insufficient funds in
the account of the drawer to honour the cheque, the cheque
was dishonoured for the reasons viz., ‘ alteration in the date’

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and ‘ requires full signature’. Accordingly, it was found that
Ext.P1 is a void cheque because of material alteration and
consequently, criminal prosecution could not succeed.
7. The learned counsel for the
appellant/complainant argued that even though the cheque
was dishnoured for the reasons, viz., (1) alteration in the
date and (2) requires full signature, as per Ext.P2 memo
dated 06.10.2005, the correction in the date in Ext.P1 was
made by the drawer/accused at the time of issuance of the
cheque and it was so specifically stated in the complaint.
That apart, the liability to the tune of 25,000 and issuance
₹
of Ext.P1 cheque during 2004 were admitted by the accused
by raising plea of discharge, insofar as 25,000 admittedly ₹
received by him during 2004. Therefore, the case advanced
by the complainant is liable to be believed based on the
evidence given by PW1, so as to avail the benefit of
presumption under Section 139 of the NI Act in favour of the
complainant. He also submitted that there is no material

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alteration in the cheque to make the same as void as found
by the learned magistrate.
8. In view of the argument advanced, the
questions arise for consideration are:
1. What is the legal effect of correcting the date of
cheque without an authentication by putting
signature by the drawer of the cheque?
2. If any material alteration is found in a Negotiable
Instrument, what is the legal consequence?
3. Whether the trial court is right in holding that
the accused did not commit any offence under
Section 138 of the NI Act since Ext.P1 is a void
instrument?
4. Whether the trial court verdict would require
interference?
5. Order to be passed?
9. Point Nos.1 to 5
On perusal of Ext.P2 dishonour memo, the reasons
for dishonour of cheque are twofold, viz., (1) alteration in
date and (2) requires full signature. On perusal of Ext.P1
cheque, it could be seen that ‘05’ showing the year as 2005

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has been altered and re-written after erasing the earlier date.
The specific case of the accused is that the cheque was
issued during the year 2004 and it was materially altered by
correcting the figure ‘04’ as ‘05’ and the same had no
authentication by him. In this connection, it is relevant to
refer Section 87 of the NI Act, which deals with material
alteration. Section 87 of the NI Act reads as under:
“ 87. Effect of material alteration. —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;
It is also provided that any such alteration, if made
by an indorsee, discharges his indorser from all liability to
him in respect of the consideration thereof. So as per
Section 87 of the NI Act, material alteration of a negotiable
instrument by altering the date renders the same void as
against any one who is a party thereto at the time of making

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such alteration and does not consent thereto, unless it was
made in order to carry out the common intention of the
original parties. Thus, if there is alteration in the date of the
cheque, the same should be authenticated by the drawer,
and if there is alteration after the sharing of the common
intention of the drawer and the drawee to do so, as
authenticated by the drawer by putting his full signature on
the place of alteration, then it cannot be treated as a material
alteration. When there is alteration of the date in the cheque
which is not authenticated by putting the full signature of the
drawer on the place of alteration, the same operates as a
material alteration and the same makes the instrument void.
Be it so, Ext.P1 is a void cheque, as the alteration in the date
was not authenticated by the drawer/accused with his full
signature, and the same cannot be the basis of the
prosecution.
10. The legal position being so, the learned
Magistrate is right in holding that Ext.P1 is a void cheque and

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no prosecution based on the void cheque is permissible. In
view of the above, the finding of the learned Magistrate in
the above line is only to be justified.
In such view of the matter, the appeal necessary
fails. Accordingly, this criminal appeal is dismissed.
Sd/-
A. BADHARUDEEN
JUDGE
nkr