1 appln 1285 of 2007 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1285 OF 2007 Khopoli Shahar Nagri Sahakari Patsanstha Maryadit .. Applicant. -versus Sou. Prachi P Gaikwad and anr .. Respondents. Mr. Pratap Patil, for the Applicant. Mr. Raju M. Yamgar, for the Respondent No.1 Mrs. P P. Bhosale, APP for the respondent state. CORAM: R.C. CHAVAN, J. DATED: 5th July, 2011 P.C. 1. This is an application for leave to file appeal against judgment of acquittal ordered by the learned J.M.F.C. Khalapur, for the offence punishable under Section 138 of the Negotiable Instrument Act. The cheque dated 19.5.2005 for Rs.40,986/- was dishonoured. The learned Magistrate held that the cheque was in fact given on 10.4.2000 when the loan of Rs.30,000/- was advanced to the respondent No.1. Learned counsel for the applicant relied on my judgment in Purshottam Maniklal Gandhi -vs- Manohar K Deshmukh and anr, 2007 (1) Mah L. J. 210 to support his contention 2 appln 1285 of 2007 that even incomplete instrument can be filled up by the holder and it does not amount to any alteration in the cheque since the cheque was not initially issued for any different specified sum. In that case the complainant had come up with a case that the complainant had received blank cheque, signed by the accused with the authority to fill up amount as well as date. Here the complainant came up with a case that the cheque was dated 19.9.2005, though this date could have also been filled up. Therefore, the complainant had to succeed in establishing that the cheque was in fact given on 19.9.2005. The circumstances show that the cheque was given by way of security to ensure recovery of loan of Rs.30,000/- on 10.4.2000, in respect of which the complainant Society had already obtained recovery certificate under Section 101 of Maharashtra Co-operative Societies Act. on 24.7.2002. The complainant had not produced any evidence that after recovery certificate was obtained on 24.7.2002 and demand was made on 9.10.2002 the respondent had given the cheque. The learned Magistrate therefore cannot be faulted for holding that the cheque in question was not given in the discharge of any debt or any legally enforceable liability since the date put up on the cheque is more than three years after recovery certificate was issued. Ordinarily no borrower would issue such a cheque after recovery proceedings commenced and culminated into recovery certificate. The view taken by the 3 appln 1285 of 2007 learned Magistrate cannot be called perverse or improbable. Leave refused. Appeal dismissed. (R. C. CHAVAN, J.)