IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.46 of 2008 Between: Paparayudu Kamath Permanent Fund Limited, Regd. Firm, Mandapeta, East Godavari District rep. by its Managing Director, K. Paparayudu. .. Appellant AND Angara Satyanarayana and another .. Respondents JUDGMENT: The appeal is directed against the judgment in C.C. No.2 of 2003 on the ﬁle of the Judicial Magistrate of First Class, Alamuru, dated 24-10-2007, by which the accused was found not guilty of an oﬀence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”) and was consequently acquitted. 2. The complainant, a registered ﬁrm, advanced a loan of Rs.1,00,000/- to the accused for business investment under a demand pronote repayable with interest at 24 per cent per annum and creating an equitable mortgage over his lands by deposit of title deeds as security. On several demands for repayment, the accused was claimed to have issued a cheque dated 30-12-1999 on State Bank of India, Mandapeta for Rs.1,00,000/- towards part payment of the legally enforceable debt, which was presented for collection and was returned unpaid and dishonoured due to insuﬃciency of funds in the account. Then the complainant got a statutory notice issued on 09-01-2000, which was received on 13-01- 2000 by the accused who gave a reply with false allegations, but did not pay the amount. Therefore, the complaint to punish the accused under Sections 138 and 142 of the Act. 3. The accused was furnished with copies of the documents on his appearance after the oﬀence was taken cognizance and when examined under Section 251 of the Code of Criminal Procedure, he pleaded not guilty. The complainant had examined P.Ws.1 and 2 and marked Exs.P.1 to P.5 during trial and the accused denied the incriminating circumstances appearing in the evidence against him when he was examined under Section 313 of the Code of Criminal Procedure. The accused got examined himself as D.W.1 and marked Exs.D.1 and D.2. 4. The trial Court rendered the impugned judgment noting the admitted fact that the accused signed on Ex.P.1 cheque and still placing the initial burden on the complainant to prove the issuance of the cheque in full or part satisfaction of a legally enforceable debt or liability, the trial Court noted the absence of production of the alleged pronote executed by the accused and the non-examination of any persons connected with the said document. The trial Court further observed that if the complainant had ﬁled O.S. No.33 of 2000 on the ﬁle of Senior Civil Judge’s Court, Ramachandrapuram for recovery of the pronote debt, nothing prevented the complainant from ﬁling at least the certiﬁed copies of the documents ﬁled before the civil Court. The trial Court also was of the opinion that the complainant, therefore, failed to discharge the initial burden of proof to link Ex.P.1 cheque with any debt or liability. The evidence of the accused as D.W.1 was noted to be not subjected to any such cross-examination as would question his claims during the chief-examination. Ex.D.1 book issued by the complainant in the name of the accused and Ex.D.2 bunch of receipts were considered to be admitted documents revealing the complainant doing chit fund business. While the evidence of P.W.2, the Branch Manager of the bank was considered unimportant, P.W.1’s evidence was said to be containing an admission about the diﬀerence in ink between the signature of the accused and the other writings in Ex.P.1. Therefore, the trial Court concluded that the words and ﬁgures in Ex.P.1 cheque were later ﬁlled up by the complainant after the earlier signature of the accused on it and therefore, the principles laid down in Taher N. Khambati v. M/s. Vinayak Enterprises[1] and Avon Organics Ltd. v. Pioneer Products Limited[2] were considered directly applicable to the facts and circumstances of the case. Consequently, the accused was acquitted. 5. The acquittal is the subject of challenge in this appeal at the instance of the complainant, who contended that reliance on the precedent cited is erroneous, as the decision has no bearing on the case on hand and the evidence of P.W.1 was not properly appreciated in drawing a wrong conclusion about diﬀerence in ink in the contents of Ex.P.1. Therefore, the appellant desired the acquittal to be reversed. 6. Sri N. Siva Reddy, learned counsel for the appellant and Sri P. Udaya Bhaskara Rao, learned counsel for the 1st respondent/accused and Sri Rudresh Deshpande, learned counsel representing the learned public prosecutor/2nd respondent are heard. 7. The point for consideration is whether there are strong and suﬃcient grounds for interfering with the acquittal of the accused on merits by the trial Court ? 8. Point: P.W.1 is the Managing Director of the complainant, who instituted the complaint and he admitted the complainant doing not only the business in ﬁnance but also chit fund business. The ﬁling of a suit before the civil Court for the same amount was admitted by him and he further admitted that there may be variation between the signature and other writings of Ex.P.1. He further admitted that it is true that the ink also is diﬀerent between the signature of the accused and the other writings in Ex.P.1. In the light of the said admissions of P.W.1 himself about the variation in ink and diﬀerence in handwriting, the contention in the grounds of appeal that those admissions could not have been acted upon, cannot be sustained. The evidence of P.W.2 is only about the dishonour of Ex.P.1 cheque, which is not factually in dispute and the accused as D.W.1 admitted that the suit filed against him before Senior Civil Judge’s Court, Ramachandrapuram in O.S. No.33 of 2000 in respect of the same claim was decreed. Therefore, the defence that there was no pre-existing legal liability or debt due from the accused to the complainant may not be open to acceptance, but the same does not automatically probablise that Ex.P.1 cheque might have been issued by the accused with all the contents of the same being ﬁlled by himself. The accused in his chief-examination aﬃdavit claimed Ex.P.1 cheque to be a blank cheque obtained from him, which was ﬁlled by K. Sarvarayudu, a clerk of the complainant. A perusal of the cheque with naked eye also does not detract from the credibility of the admissions of P.W.1 about the diﬀerence in ink and handwriting and on such material, it cannot be said that the principles laid down in Avon Organics Ltd. v. Pioneer Products Limited (2 supra) are not applicable. The learned Judge held in that case that ﬁlling up the cheque for a particular amount in ﬁgures and words and ﬁlling up date in a blank cheque constitutes alteration of the cheque, which, therefore, will not bring any dishonour of such cheque within the mischief of Section 138 of the Act. 9. Sri N. Siva Reddy, learned counsel for the appellant, of course, brought to notice the decision in Chinthala Cheruvu Govind Reddy v. State of A.P.[3], wherein another learned Judge of this Court held that an implied authority is given to the holder of the cheque, at the time of entrusting a blank cheque containing the signature of the drawer of the cheque alone, to ﬁll the columns therein and therefore, if the columns are ﬁlled up later, it may not amount to an oﬀence punishable under Sections 468 and 471 of the Indian Penal Code. However, the facts of that case obviously related to an allegation of committal of oﬀences under Sections 468 and 471 of the Indian Penal Code by the person who ﬁlled up the blank columns in a cheque admittedly signed by the drawer of the cheque, but the facts and circumstances for consideration herein are about a diﬀerent situation, wherein the question for consideration is the liability of the person signing the blank cheque which was ﬁlled up later and presented for encashment by the holder so as to bring within the mischief of Section 138 of the Act. It is, however, true that in Ravi Chopra v. State[4] relied on by Sri Siva Reddy, learned counsel, the view taken in Avon Organics Ltd. v. Pioneer Products Limited (2 supra) was obviously not concurred with, when it was held with reference to various precedents and principles that the provisions of the Act permit the holder in due course of a negotiable instrument to ﬁll up material particulars without the said instrument being rendered void. However, in view of the precedent emanating from this Court, which has not so far been speciﬁcally dissented from or overruled, the trial Court following the same cannot be considered to be an error calling for interference in appeal. As the facts and circumstances of the case probablised by the evidence on record about Ex.P.1 cheque signed by the accused having been ﬁlled up in its other contents later, bring the question in issue herein within the scope of the principle laid down in Avon Organics Ltd. v. Pioneer Products Limited (2 supra), the acquittal of the accused cannot be interfered with in this appeal. 10. Therefore, the appeal is dismissed. _____________________ G. BHAVANI PRASAD, J Date: 17-11-2011 Svv [1] 1995 Crl.L.J. 560 [2] 2004(1) Crimes 567 [3] 2007 (1) ALD (Crl.) 801 (AP) [4] III (2008) BC 136