HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.189 OF 2007 DATE:19.07.2010 Between: M. Raghu Rama Rao …… Petitioner. And: State of A.P., rep. by its PP and another …..Respondents. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.189 OF 2007 JUDGMENT: 1. Unsuccessful complainant filed this appeal against finding of acquittal recorded by the II Additional Judicial Magistrate of the First Class, Kothagudem in the judgment dated 24.11.2006. The complainant/appellant filed the case in the lower court against the 2nd respondent/accused alleging offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act) for dishonour of Ex.P-2 cheque as per Ex.P-3 dishonour memo. After issuing Ex.P-4 statutory notice, the appellant filed the private complaint in the lower court. The complainant apart from examining himself as P.W.1, examined P.Ws.2 and 3 who are attesters and scribe of Ex.P-1 promissory note which is stated to be the legally enforceable debt backing Ex.P-2 cheque. 2. There is no dispute on the part of the 2nd respondent/accused that Ex.P-1 promissory note and Ex.P-2 cheque contain her signatures. There is also no dispute that the complainant/P.W.1 is Managing Partner and foreman of Shri Rama Capital Finance and Chits in which the accused subscribed two chits and committed default in making payment of future instalments after obtaining prize amount under one chit. It is contention of the accused that her signatures were obtained by P.W.1 on several documents and papers including Exs.P-1 and P-2 when they were blank. P.W.1 in cross-examination admitted that his name as payee in Ex.P-2 cheque and date on Ex.P-2 cheque were filled up by himself. He says that he did not write words and figures as Rs.1,00,000/- on Ex.P-2 and that they were also not written by the accused. Thus, it is evident that Ex.P-2 was obtained by P.W.1 when it was blank with only signatures of the accused. Therefore, the accused contended that there is material alteration in Ex.P-2. No doubt, under Section 87 of the Act, there can be alteration in a cheque in case the drawer consents for such alteration. Secondly, there can be alteration in the cheque in case it was made in order to carry out common intention of both the parties. Therefore, the burden is on the complainant who is custodian of the document Ex.P-2 to prove that amounts in figures and words were filled up by him through some person in order to carry out the common intention of both the parties. No such evidence is forthcoming from the complainant. 3. It is contended by the petitioner’s counsel that in view of Section 118 and Section 139 of the Act, under which there is legal presumption, it is for the accused to prove contra and to rebut the said presumptions. The presumptions therein relate to consideration under the ‘Negotiable Instrument’ and not regarding alteration or material alteration covered by Section 87 of the Act. The complainant did not want to enforce Ex.P-2 with regard to alleged defaults committed by the accused in paying chit subscription after she had withdrawn prize amount in a chit. The complainant totally set up a new case as if the accused borrowed the sum of Rs.1,00,000/- from him and executed Ex.A-1 promissory note and gave Ex.P-2 cheque in his favour. Since the accused has proved that she gave Ex.P-2 when it was blank, it is for the complainant to prove that Ex.P-2 was drawn towards discharge of a legally enforceable debt. Since there was no amount even mentioned in Ex.P-2 when it was drawn by the accused, the question of presumption as to consideration contained under Section 139 of the Act does not arise at all. Having regard to all the circumstances of the case, this Court is of the opinion that the complainant/appellant has failed to prove, requirements for convicting the accused for the offence under Section 138 of the Act. The lower court rightly recorded finding of acquittal in this case. There are no legal or justifiable grounds to interfere with the order of acquittal passed by the lower court. 4. In the result, the appeal is dismissed. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:19.07.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.189 OF 2007 Date:19.07.2010 Gk.