THE HON'BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.986 OF 2004 JUDGMENT: The accused, respondent No.1 herein, in C.C. No.469 of 2002 on the file of the learned V Additional Munsif Magistrate, Guntur was found not guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) and accordingly he was acquitted by the said acquittal order of the trial Court, complainant preferred this appeal contending that the trial Court had acquitted the accused erroneously without appreciating the evidence and other material on record in proper perspective and thereby sought his conviction. 2. The facts of the case, in brief, are as follows: The accused had borrowed an amount of Rs.1,25,000/- from the complainant on 11-09-2000 by executing the promissory note under Ex.P-1 in his favour. Thereafter, on repeated demands, accused had issued a cheque bearing No.1100072 for collection on 24-09-2002, for Rs.1,86,000/- and when the same was presented in the bank for encashment, it was dishonoured due to ‘insufficient funds’. A statutory notice was issued on 30-09-2002 and the same stood not complied with. Hence, the impugned private complaint was filed against the accused under Section 138 of the Act in the trail Court. 3. On his pleading not guilty to the charge, accused was tried for the offence under Section 138 of the Act. 4. In support of his case, the complainant had got himself examined as PW.1 besides examining PW.2 and got marked Exs.P-1 to P-5, whereas the accused had got himself examined as DW.1 but no documents were marked on his behalf. 5. The case of the complainant is that when the accused had given the cheque in question, he had filled it up in his (accused) presence with his consent. However, the case of the accused is that the material on record reveals that at the time of filling up the cheque, accused was not present and his consent was not obtained and that different ink was used for filling up the columns of ‘payee’ and ‘signature’ from that of the ink used for filling up the columns of the ‘amount’ and the ‘date’, which can be noticed by a mere look at Ex.P-2 – cheque. 6. Heard the learned counsel on either side and perused the impugned judgment and other material on record. 7. Now the point that arise for consideration is whether there are any grounds for allowing this appeal ? 8. The learned counsel for the accused contended that the trail Court cannot be found fault with in observing that Ex.P-2 cheque appears to have been obtained in a blank form and subsequently appears to have been filled up the amount and other columns for collection of the amount and the same amounts to material alteration of a cheque intended to have been issued in discharge of a legally enforceable debt and the dishonour of which does not amount to any offence, and therefore, the impugned judgment dated 19-11-2003 passed by the trail Court is not liable to be interfered with and/or set aside and the appeal appears to be devoid of merits and deserves to be dismissed. 9 . It is contended on behalf of the complainant that the trial Court wrongly framed the point for consideration to the effect that the complainant had to prove his case beyond reasonable doubt. It is further contended that the trail Court failed to follow the provisions of Sections 139 and 118 of the Act and in support of the same, he relied on the decision of the Hon’ble Apex Court in P.K. MANMADHAN KARTHA v. SANJEEV RAJ AND ANOTHER[1], contending that though the facts in the said case are different, the preposition laid down with regard to presumptions under Sections 139 and 118 of the Act is applicable to the case on hand. Of course, it is referred to in the said judgment as to the handwritings and ink in a different context. The learned counsel relying on another decision of the Hon’ble Apex Court in K.N. BEENA v. MUNIYAPPAN AND ANOTHER[2], it is contended that though the accused had failed to discharge the burden of proving that the cheque was not issued for a legally enforceable debt or liability, the trial Court had convicted him and the Hon’ble Apex Court found that the High Court had erroneously set aide the conviction passed by the trail Court. In the case on hand, accused has also admitted in his evidence that he had also given Ex.P-2 cheque as a security. The grievance of the complaint is that the accused did not give reply notice stating that Ex.P-2 cheque was issued for the purpose of security. Therefore, the presumption under Sections 139 and 118 of the Act are not discharged by the accused. However, accused had deposed in his evidence as DW.1 that he had issued Ex.P-2 cheque to the complainant as a security and the complainant subsequently filled up the amount and date columns and filed the private complaint. The trial Court, considering the same came to a wrong conclusion that the presumption under Section 139 of the Act is rebutted. Therefore, the trial Court, in this connection, though appears to have considered the facts and circumstances of the case, it cannot be said that it has come to a right conclusion in view of the fact that it has relied on a decision stated to have been overruled and it cannot be said that the trial Court has not committed any error or irregularity. 10. On the other hand, the learned counsel for the accused supported the impugned judgment of acquittal passed by the trial Court stating that after taking the pros and cons and the entire material, the trail Court has come to a right conclusion in finding the accused not guilty of the offence under Section 138 of the Act and as such the same is not liable to be interfered with by this Court since the case of the complainant in this appeal is that relying on an overruled decision, the trial Court has come to a wrong conclusion in dismissing the complaint and acquitting the accused. 11. It is apparent from the facts of the case that there is no dispute about the accused borrowing an amount of Rs.1,25,000/- from the complainant on 11-09-2000 by executing Ex.P-1 promissory note in his favour. Further, there is clear admission on the part of the accused as DW.1 that he issued Ex.P-2 cheque in favour of the complainant towards security for the amount covered by Ex.P-1 promissory note. However, the accused did not explain as to why he kept quite even after receipt of the statutory notice dated 30-09-2002, Ex.P-4, issued by the complainant under Ex.P-5 postal acknowledgement denying the case of the complainant. It also appears to be true that the trial Court relying on the overruled decision came to a wrong conclusion that the complainant failed to prove his case against the accused for the offence under Section 138 of the Act since it was the case of the accused that he issued the cheque for the purpose of security. In the circumstances, it is apparent that the trail Court failed to appreciate the facts and law in proper perspective and thereby came to an erroneous conclusion and dismissed the complaint. 12. Having regard to the facts and circumstances of the case, this Court is of the view that it is a fit case for remanding the matter to the trial Court to dispose of the same afresh on merits after hearing both sides by correctly appreciating the facts and law in proper perspective having regard to the settled legal position. 13. In the result, the Criminal Appeal is allowed. The impugned judgment dated 19-11-2003 in C.C. No.986 of 2004 passed by the learned V Additional Munsif Magistrate, Guntur is set aside and the matter is remanded back to the trail Court for fresh disposal on merits after hearing both sides uninfluenced by the observations, if any, made by this Court as expeditiously as possible preferably within a period of three (3) months from the date of receipt of a copy of this judgment. _________________ B.N. RAO NALLA, J Date:18-04-2011. MRB/PV [1] (2002)7 SCC 150 [2] (2001)8 SCC 458