THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 956 OF 2004 DATE: 08th JULY, 2011 Between: Kolla Kranti Kiran Kumar … Petitioner / Complainant And: Polisetty Soma Sundaram and another … Respondents THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 956 OF 2004 JUDGMENT: This appeal is against acquittal of the accused for offence under Section 138 of the Negotiable Instruments Act (for short, NI Act) in C.C.No.76 of 2004 by the Judicial Magistrate of the First Class for Excise, Guntur on 09.03.2004. The appellant herein is the complainant and has filed the complaint alleging that the accused borrowed an amount of Rs.8,00,000/- for the purpose of business and executed a promissory note agreeing to repay the same with interest at 24% per annum. On repeated demands, the accused issued a cheque for Rs.11,84,000/- drawn on Indian Overseas Bank, Guntur dated 08.08.2002, towards full settlement of the said pronote amount. The complainant presented the said cheque with his banker i.e. Indian bank, Nehru Nagar, Guntur, for collection and the same was dishonoured for want of funds. The complainant having received the same on 10.08.2002, got issued a legal notice on 14.08.2002 calling upon him to pay the cheque amount, but the accused evaded to receive the same and got them returned. Hence, the accused is liable for punishment under Section 138 of the NI Act. When the accused was examined by the Magistrate under Section 251 of Cr.P.C., he pleaded not guilty for the said offence. The complainant, in order to establish the allegations, examined three witnesses i.e. PWs. 1 to 3 and got marked exhibits P1 to P6. In defence, accused examined himself as DW.1 and got marked Exs.D1 to D3. The learned Magistrate, by taking into consideration the oral and documentary evidence, found the accused not guilty for the offences under Section 138 of the NI Act and thereby, acquitted him. Aggrieved by the said acquittal, the present appeal is filed by the complainant. Now the point that arises for consideration is whether the appellant/complainant is able to establish the offence of the accused under Section 138 of the NI Act, beyond reasonable doubt. Heard the appellant’s counsel. In spite of giving sufficient opportunity, no representation was made on behalf of the respondent. Even though the matter is posted for judgment, none appeared on behalf of respondent No.1. The learned counsel appearing for the appellant has pleaded that the accused admitted his 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 was issued towards discharge of a legally enforceable debt and as the cheque was dishonoured for want of sufficient funds, the accused is guilty of the offences under Section 138 of the NI Act. The learned counsel for the appellant has further pleaded that the burden is on the accused to rebut the presumption available to the complainant under Section 139 of the NI Act and the accused has failed to rebut the presumption available to the complainant, as such the lower Court has erred in coming to the conclusion that the accused has successfully rebutted the presumption under Section 139 of the NI Act. According to the complainant, he lent an amount of Rs.8,00,000/- to the accused for his business purpose and the accused executed a promissory note agreeing to repay the same with interest at 24% per annum and, on repeated demands, he gave a cheque for Rs.11,84,000/- on 08.08.2002 towards full settlement of the said pronote debt, and the said cheque was dishonoured for want of sufficient funds. The plea of the accused is that he has no transactions with the complainant and he has got business transactions with one Medepalli Ramamohana Rao and in the business transactions, the said Ramamohana Rao obtained a blank pronote and blank cheque from him and as disputes arose between them with regard to the business transactions, the said Medepalli Ramamohana Rao has got filed this present complaint through the complainant. Thus, from the above, it is evident that the accused is not disputing about the signatures on the promissory note-Ex.P1 and the cheque-Ex.P2. Therefore, the complainant is entitled to draw presumptions under Section 139 of the NI Act. The said presumption is rebuttable if the accused is able to produce sufficient proof of explanation for issuing the cheque. In HITEN P. DALAL v. BRATINDRANATH BANERJEE[1], the Apex Court held that “Section 139 of the NI Act provides that it shall be presumed unless the contrary is proved, that the holder of the cheque received the cheque of the nature referred to in Section 138 of the NI Act for discharge in full or in part, any debt or other liability. The effect of this presumption has placed evidential burden on the accused of proving that the said cheque was not received by the complainant towards discharge of any liability”. In view of the above said decision, the burden is on the respondent No.1/accused to rebut the presumption that the cheque was not issued to the complainant to discharge any legally enforceable debt. The accused got examined himself as DW.1 and has stated that he is doing tobacco business in the name and style of Polisetty Soma Sundaram (P) Ltd., and is Managing Director of it. He does not know the complainant prior to his making appearance in this case and he never executed the original of Ex.P1 and also never issued Ex.P2 in favour of PW.1. He further stated that he and one Medepalli Ramamohana Rao are having some money transactions during which the said Ramamohana Rao obtained signed blank cheque and blank promissory note from him with his signatures and after clearing the dues, when he demanded him to return the signed blank cheque and promissory note, Rammohana Rao said that they were misplaced with him. He further stated that he cleared the said transaction on 31.07.2002 in the presence of Madderale Rajeshwara Rao, Chairman of the Housing Board, Guntur. He further stated that he has not received notice under Exs.P5 and P6 and on 09.07.2002, his personal account and company account were attached by the Assistant Provident Fund Commissioner and he came to know about it through bank on 10.07.2002 and since then he is not regularly operating the account and he has no knowledge about bouncing of Ex.P2-cheque. The Assistant Manager of Indian Overseas Bank was examined as PW.3 by the complainant and he has stated that Ex.D2 dated 30.07.2002 is the order received from the Assistant Provident Fund Commissioner and the same was intimated to the accused vide their order dated 02.08.2002 under Ex.D3. He further stated that from the date when the account was withheld under Ex.D2-order, the accused was not operating the account and the Ex.P2 was returned in a routine manner stating ‘insufficient funds’. Except the oral evidence of DW.1, there is no material on record to show that he has money transactions with Medepally Ramamohana Rao and in that connection he had issued Ex.P1 and P2 to him, even though he pleaded that he has cleared the said transaction with Medepally Ramamohana Rao in the presence of Maddirale Rajeswara Rao on 31.07.2002, he could not produce any evidence in that regard. Therefore, the accused could not establish that Exs.P1 and P2 were given by him to Medepally Ramamohana Rao in connection with the money transactions he had with him. The lower Court has observed that as per Ex.D1-Bank Account copy, which clearly shows that there is no cheque amount as on 08.08.2002, and as per the said account, subsequent cheques were availed by the accused by January, 2001 and thereafter, he availed another cheque book from 28.02.2001 to 28.12.2001 and subsequent to December, 2001, the accused is not operating the account with PW.3’s Bank and they clearly show that the accused has not given Ex.P2-cheque on the date mentioned i.e. 08.08.2002. The lower Court further observed that the ink used for writing the body of cheque and also signature of the accused is different and thereby came to the conclusion that the accused has not given the Ex.P2- cheque to the complainant on the date mentioned therein towards the discharge of any legally enforceable debt. As admitted by PW.1, there is a change in the ink in the signature and other parts of the body of Ex.P2. But it cannot be said to be a material alteration of the negotiable instrument, even though the figures in the cheque were filled up subsequently. I n CHINTALA CHERUVU GOVINDA REDDY AND ANOTHER v. STATE OF A.P. AND ANOTHER[2], the leaned single Judge of this Court has held that filling up or mentioning the date and amount by words and figures on the cheque would not amount to alteration of cheque or fabrication or forgery so as to attract offences punishable under Sections 468 and 471 of IPC. Therefore, even though the contents of the cheque were written by a different person with a different ink, it does not amount to alteration of cheque. As per the evidence of PW.3, the Assistant Provident Fund Commissioner issued order attaching the accounts of the accused on 30.07.2002 and they communicated the same to the accused on 02.08.2002 under Ex.D3. Therefore, prior to the date mentioned in Ex.P2 i.e., 08.08.2002, the account of the accused was already attached by the Provident Fund Commissioner. But it cannot be taken as a ground to disbelieve the version of the complainant that the cheque was issued by the accused towards discharge of legally enforceable debt, as there is every possibility of issuing a cheque knowing fully well that the account was already attached by the Provident Fund Commissioner. Ex.D1 is the Account copy of the accused which is marked through PW.3-Assistant Manager of the Indian Overseas Bank. As per the said Statement of Account, the accused has availed the cheque subsequent to Ex.P2 by January, 2001 and thereafter he has availed another cheque book bearing leaf numbers commencing from 194601 to 194620 between 28.02.2001 to 28.12.2001 and subsequent to December, 2001 the accused is not operating the account with PW.3’s Bank. Thus, it clearly shows that by the date of issuance of the cheque-Ex.P2, the accused is not operating the account and all the cheques subsequent to the cheque-Ex.P2 were already availed by the accused. The complainant counsel pleaded that even though other cheques were utilized by the accused, he might have kept Ex.P2 leaf with him and issued to the complainant in discharge of legally enforceable debt. Even if the said contention is accepted, the said cheque would not have been issued on 08.08.2002, after availing another cheque book by the accused and it probabilises the defence of the accused. Therefore, as rightly observed by the lower Court, the accused was able to establish that the cheque-Ex.P2 was not issued on the date mentioned therein i.e., 08.08.2002, thereby the accused has discharged his burden of rebutting the presumption under Section 139 of the NI Act. Hence, the complainant failed to establish the offence under Section 138 of the NI Act against the accused beyond reasonable doubt. In the result, the appeal is dismissed. _____________________________ JUSTICE P. DURGA PRASAD 08th July, 2011 KSM [1] AIR 2001 SC 3897 [2] 2007 (1) ALD Criminal 801