THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.743 OF 2004 JUDGMENT: This is an appeal filed against the acquittal of the accused for the offence under Section 138 of Negotiable Instruments Act in C.C.No.410 of 1998 by the I Additional Judicial First Class Magistrate, Warangal on 24.09.2003. The appellant herein is the complainant and he has filed the said complaint alleging that the accused borrowed a sum of Rs.50,000/- from him on 08.02.1998 agreeing to repay the same with interest at 18% P.A., and executed a promissory note and receipt in his favour and she also executed an equitable mortgage by depositing her title deeds towards security. The accused, towards partial discharge of the said liability issued a cheque bearing No.395471 for Rs.50,000/- dated 20.06.1998 drawn on Pubjab National Bank, Warangal. The complainant has presented the said cheque on 22.06.1998, but the same was returned as unpaid with an endorsement “insufficient funds”. On 01.07.1998 complainant got issued a legal notice to the accused demanding her to pay the amount covered by the said cheque and the accused received the said notice and got issued a reply notice with false allegations. The cheque was filled up by the complainant at the instance of the accused in her presence. Hence the accused is liable for punishment under Section 138 of Negotiable Instruments Act. When the accused was examined by the Magistrate under Section 251 Cr.P.C., she pleaded not guilty for the said offence. The complainant in order to establish the allegations examined 4 witnesses i.e. P.Ws.1 to 4 and marked Exs.P.1 to P.12. On behalf of the accused, D.Ws.1 and 2 were examined and marked Exs.D.1 to D.8 and Ex.C.1. The learned Magistrate by taking into consideration of the said oral and documentary evidence held that the complainant has miserably failed to establish the guilt of the accused for the offence under Section 138 of Negotiable Instruments Act and thereby acquitted the accused. Against the said acquittal, the present appeal is filed by the complainant. Now, the point that arises for consideration is: Whether the appellant-complainant could able to establish the offence under Section 138 of Negotiable Instruments Act against the accused beyond reasonable doubt? P O I N T: Learned counsel for the appellant has pleaded that the accused has admitted about her signature on the disputed cheque and also on the promissory note, as such the presumption has to be drawn against the accused that the said cheque Ex.P.1 issued towards legally enforceable debt and as the said cheque was dishonoured for want of sufficient funds, the accused is guilty of the offence under Section 138 of Negotiable Instruments Act. The respondent, who is appearing in-person, did not turn up for last 3 months in spite of adjourning the matter on several occasions for her appearance and she did not turn up even though the matter posted for judgment today. As per the evidence produced on behalf of the respondent No.2 - accused before the lower Court that she only borrowed Rs.20,000/- from the complainant on 08.02.1998 and the complainant obtained her signature on the blank promissory note and also on blank papers. On 10.02.1998 she went to the complainant and demanded him to execute a letter to the effect that she deposited her title deeds and so, the complainant executed letter dated 10.02.1998 to that effect, which is Ex.D.1. It is also her further case that subsequent to the filing of the complaint, she was summoned by P.W.1 to the house of her parents-in-law, situated in Ursu on 15.07.1998 and he obtained her signatures on some blank papers stating that the elders would settle the dispute, but the elders did not conduct any paychayat and that she did not execute (Ex.P.9) memorandum of title deed or agreement dated 15.07.1999 (Ex.P.11). Therefore from the above contentions of the accused before the lower Court, it is clear that she has admitted her signature on the promissory note and also on the cheque, but her contention is that she signed on the blank cheque at the instance of the complainant. Since the signature on the cheque was admitted by the accused, the complainant is entitled to draw the presumption under Section 139 Negotiable Instruments Act. The said presumption is rebuttable if the accused could able to produce sufficient proof of her explanation for issuing the said cheque. In “HITEN P. DALAL v. BRATINDRANATH BANERJEE[1]” the Apex Court held that Section 139 of Negotiable Instruments Act provides that “it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge in whole or in part, of any debt or other liability. The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the discharge of any liability. Because both Sections 138 and 139 require that the Court “shall presume” the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court “may presume” a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact”. Thus, in view of the above said decision, the burden is on the respondent-accused to rebut the presumption that the cheque was not issued to the complainant for discharge of legally enforceable debt. The lower Court has observed that as per Ex.D.1 the complainant lent only Rs.20,000/- but not Rs.50,000/- and so, the version of the accused that the complainant obtained a blank cheque and also some blank documents from the accused can be believed and further observed that the complainant has not examined the scribe or attestors of Ex.P.8 promissory note and held that the even though, there is a presumption available under Section 138 of Negotiable Instruments Act that Ex.P.1 cheque can be presumed to be issued by the accused towards her legal liability, the same was rebutted by the accused by filing Ex.D.1. Admittedly, the contents of the cheque were written by the complainant in the presence of the accused. In “CHINTHALA CHERUVU GOVIND REDDY AND ANOTHER v. STATE OF A.P. AND ANOTHER[2]”, the learned Single Judge of this Court has held that filling up of, mentioned date and amount by words and figures, would not amount to alteration of cheque or fabrication or forgery so as to attract offences punishable under Sections 468 and 471 IPC. Since in view of the above said decision, even though the contents of the cheque were written by the complainant as it does not amount to alteration of cheque and the said cheque is a valid negotiable instrument and the same does not absolve the liability of the accused. The lower Court has not properly considered the evidence produced by the accused i.e. D.Ws.1 and 2 and Exs.D.1 to D.8, but came to the conclusion that the presumption under Section 139 of Negotiable Instrument Act was rebutted by the accused basing on Ex.D.1 letter. The said letter apparently shows about deposit of title deeds for an amount of Rs.20,000/- lent by the complainant. The learned Magistrate has not considered how the said letter is relevant for the present case when it is alleged that the accused has borrowed Rs.50,000/- and executed a promissory note and subsequently issued a cheque for Rs.50,000/- towards part payment of the said amount due under the said promissory note. Therefore, the said finding of the learned Magistrate is liable to be set aside. The next ground on which the lower Court has dismissed the complaint is that the complainant has failed to establish that the cheque was issued towards legally enforceable debt as the complainant is not having money lending license. The complainant admitted about advancing of loans to Dhara Gopal and M.Prasad at Rs.25,000/- and Rs.30,000/- respectively and also advancing of Rs.1,40,000/- to the Sub-Inspector of Police, Ravi Kumar and also filing of complaints against them for dishonour of cheques issued by them. Basing on the admission the learned Magistrate has came to the conclusion that the complainant is in the habit of lending money to others by charging interest without having any valid money lending license, as such he is not entitled to recover the amount lent to the accused. Hence the cheque issued by the accused cannot be treated as a cheque issued for repayment of legally enforceable debt. Learned counsel for the appellant has relied upon a decision rendered in “KOMRAVELLI VARALAXMI v. SYED KASIM HUSSAIN[3]”. Wherein the Division Bench of this Court has held that “in order to fall within the definition of ‘money-lender’ it was not enough merely to show that a man had on several occasions lent money at remunerative rates of interest; there must be a certain degree of system and continuity about the transactions. The definition envisages only those classes of persons whose regular business is to advance moneys and not those who advance moneys casually.” The other decision relied upon by the appellant’s counsel is rendered in “MRS. K.SUDERSANAM v. S.VENKATARAO[4]”. Wherein the learned Single of this Court has held that the definition of ‘money lender’ in the Act does not include those who advanced moneys casually. Therefore, in view of the above said decisions, the finding of the learned Magistrate that the complainant falls within the definition of money lender under money lending Act cannot be accepted. Hence, the said finding is liable to be set aside. Since the lower Court has not properly considered the defence evidence produced by the accused as observed above and came to the wrong conclusion that the accused has rebutted the presumption available under Section 139 Negotiable Instruments Act, it is just and proper to remit back the matter to the lower Court for disposal afresh in the light of the observations made above. The accused/ respondent No.2 has filed Crl.M.P.No.2292 of 2010 to mark certain documents by this Court. Since there is no provision to mark the documents in Criminal Appeal, the said Crl.M.P. is not maintainable and the same is dismissed. However, the accused is at liberty to produce the relevant documents before the lower Court in support of her contentions. In the result, the appeal is allowed and the acquittal of the accused for the offence under Section 138 of Negotiable Instruments Act in C.C.No.410 of 1998 on the file of I Additional Judicial First Class Magistrate, Warangal is set aside and the matter is remitted back to the lower Court for disposal afresh in the light of the observations made above by permitting both the parties to produce any oral and documentary evidence relevant to their contentions. The Lower Court is directed to dispose of the matter as early as possible preferably within a period of 6 months from the date of receipt of a copy of this Order. _______________________ P.DURGA PRASAD, J 8th July, 2011 KSP [1] AIR 2001 Supreme Court 3897 [2] 2007 (1) ALD (Crl.) 801 (AP) [3] 1962 (2) Andhra Weekly Reporter 137 [4] AIR 1963 Andhra Pradesh 442