HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2184 of 2004 Date:27.01.2011 Between: M/s. Gayathri Chits (Regd) Karimnagar. ….Appellant And: Thammishetty Venkatesham and another .…. Respondents. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2184 of 2004 JUDGMENT: This appeal arises out of the acquittal of the accuse in C.C.No.830 of 2001 by Additional Judicial Magistrate of the I Class, Karimnagar on 31.7.2004 for an offence under Section 138 of Negotiable Instruments Act. The appellant herein has filed a complaint under Section 200 of Cr.P.C against the 1st respondent herein for an offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act) alleging that the complainant is running a registered chit with Registration No.168/1999 and the registered office is situated at H.No.2-5-69, Prakasham Gunj, Karimnagar. One Thammishetty Padma was a member of the complainant’s chit series GSTH-05 holding Ticket No.14 for an amount of Rs.3.00 lakhs and that she was successful bidder at the auction held on 17.12.2000 and withdrawn the prize amount by furnishing the accused herein and other three persons as sureties for repayment of entire future amount of chit. The said Thammishetty Padma committed default in paying the instalments and thereby the complainant got issued a legal notice dated 3.10.2001 to the chit member Thammishetty Padma and to the guarantors. The accused herein who was one of the guarantors issued a cheque bearing No.622722 dated 19.9.2001 for Rs.48,000/- towards repayment of above chit amount to the complainant drawn on Indian Overseas Bank, Karimnagar Branch. When the said cheque was presented for collection on 20.9.2001 in Pujab National Bank, Karimnagar Branch, the same was returned unpaid along with a cheque return memo assigning reasons that there were insufficient funds in the account of the accused. Complainant after coming to know about the same on 21.9.2001, he got issued a legal notice dated 3.10.2001 to the accused calling upon him to pay the amount due under the above cheque within 15 days from the date of receipt of the legal notice, but accused refused to receive the said legal notice on 9.10.2001 as per the postal acknowledgment. Hence, the complaint was filed for punishing the accused under Section 138 of the Act. The lower court taken the cognizance of the offence under Section 138 of the Act against the accused and the accused has not pleaded guilty for the offence when he was examined under Section 251 Cr.P.C. On behalf of the complainant, P.Ws.1 to 3 were examined and Exs.P-1 to P-5 were marked to prove the offence against the appellant/accused. The lower court after taking into consideration of both oral and documentary evidence held that the complainant has failed to prove the guilt of the accused beyond reasonable doubt and acquitted the accused under Section 255(1) of Cr.P.C. Aggrieved by the said acquittal, the appellant who is the complainant therein has filed the present appeal. Now the point that arises for consideration is whether the appellant/complainant has established the guilt of the accused for the offence under Section 138 of the Act beyond reasonable doubt. According to the complainant, the present accused is one of the guarantors for Thammishetty Padma who became the successful bidder for the chit run by the complainant and withdrawn the amount by furnishing the present accused an three other persons as guarantors. Subsequently, she failed to repay the balance instalments and the accused who is one of the guarantors has issued the cheque dated 19.9.2001 for Rs.48,000/- which is marked as Ex.P-1 and the said cheque was presented for realisation has returned with memo Ex.P-2 stating that there are insufficient funds in the account of the accused. Thereafter the complainant got issued legal notice under Ex.P.4 calling upon the accused to pay the cheque amount within 15 days, but he refused to receive the same under Ex.P-5 postal acknowledgement. Since the accused has not repaid the said amount due under the said cheque, the present complaint was filed by the complainant. The defence of the accused is that he stood as guarantor for Thammishetti Padma for withdrawing the prize amount from the complainant and he handed over 10 blank cheques signed by him and one promissory note towards security. Thammishetti Padma is his wife and he never issued any cheque for Rs.48,000/- towards the amount payable by his wife towards the chit instalments and was filled up one of the blank cheque by the complainant and filed a false complaint in order to pressurise them to make the payment of the amount due under the said chit. The lower court has accepted the contention of the appellant- accused that the said cheque was filled up by the complainant and the same is evident from the hand writing of the complainant and the signature and it amounts to material alterations. As such the lower court found the accused not guilty for the offence under Section 138 of the Act. The learned counsel for the appellant has pleaded that as the accused admitted about his signature in Ex.P-1 cheque and as there is no dispute about dishonour of the said cheque, the presumption under Section 118 of the Act available to them, as such the said cheque was issued towards the debt payable by the wife of the accused to the complainant’s company. The accused examined himself as D.W.1 in the defence and he admitted that his wife being a member of the chit run by the complainant company and she became a successful bidder and at the time of giving prize amount, the complainant insisted him for furnishing salary certificate, 10 blank cheques signed by him and one promissory note towards security and his wife had lifted prize amount, she paid monthly instalments amounting to Rs.54,000/- and out of the said amount, the complainant issued a receipt for Rs.36,000/-, but for the remaining amount of Rs.18,000/-, he did not give any receipt. After the alleged default committed in payment of the chit amount, the complainant did not issue any legal notice to him and he did not issue any cheque for the remaining instalments. He gave Ex.P-1 cheque to the complainant along with nine other cheques towards security while receiving the prize amount on behalf of his wife. Under Section 118 of the Act, the presumption available to the complainant is when a negotiable instrument is made, it is presumed that the said instrument was drawn for consideration. But, the contention of the learned counsel for the respondents is that the said cheque was not issued by the accused and the name and the amount was filled up by the complainant and as such it amounts to material alteration and not a valid cheque. The learned counsel for the respondents in support of his contention before the lower court has relied upon a decision rendered in 2004 (1) ALT (Crl.) 90 (.A.P) wherein this Court has held that “filling up of the amount portion in words and figures and put the date as per his own choice is certainly a material alteration and the said cheque cannot be enforced even though it is issued for legal liability.” In the present case according to the 1st respondent, the said cheque was signed by him and he handed over blank cheques to the complainant as security. There is no material on record to show that the said cheque under Ex.P- 1 was filled up by the accused himself and handed over the same to the complainant for the purpose of repayment of the amount due under the chit. Lower court has categorically observed that there are material alternation in Ex.P-1 cheque as the signature of the cheque is one ink and the other matter on the cheque is with different ink. It probablises the case of the accused that the said cheque was issued by him along with 9 other cheques as security for withdrawing the prize amount. Since there are material alteration in the said cheque, even though the cheque was signed by P.W.1, it cannot be said that it was issued towards discharge of the legally enforceable debt by the accused. Therefore, the lower court has rightly come to the conclusion that the complainant has failed to prove the offence under Section 138 of the Act beyond all reasonable doubt. Hence, I do not find any valid reasons to interfere with the findings of the lower court. Hence, the appeal is dismissed. _____________________ P.DURGA PRASADJ. Date:27.01.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2184 of 2004 Date:27.01.2011 Gk.