THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.12 of 2006 BETWEEEN: P.Shyam Rao … Appellant AND 1. Mohd. Javeed & another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.12 of 2006 JUDGMENT: This is an appeal against acquittal filed by the complainant. The lower appellate Court recorded acquittal of the accused/respondent under Section 138 of the Negotiable Instruments Act (in short, the Act) and reversed finding of the Magistrate. 2. The case pertains to dishonour of Ex.P1 cheque as per Exs.P2 and P3 dishonoured memo and intimation. After issuing Ex.P4 notice, the complainant filed the case before the Magistrate. Ex.P1 stands for Rs.70,000/-. It was dishonoured for want of sufficient funds in the account of the accused. According to the complainant/PW1, the accused had drawn Ex.P1 cheque in his favour towards discharge of loan amount to the tune of Rs.70,000/-. Even though the accused is stated to have executed a promissory note at the time of borrowing Rs.70,000/- from the complainant, it is the complainant’s case that he returned the said promissory note to the accused on the date when the accused gave Ex.P1 cheque for Rs.70,000/- in his favour. The lower appellate Court observed that the complainant did not lead any oral or documentary proof to show that he lent Rs.70,000/- to the accused. The lower appellate Court totally ignored the presumption as to existence of debt or liability, as contained in Section 139 of the Act. The approach of the lower appellate Court in this regard is totally wrong. The accused did not choose to examine himself as a witness to deny receipt of debt pleaded by the complainant. Therefore, there is no possibility of rebutting of presumption contained under Section 139 of the Act, in the absence of the accused leading any evidence towards that end. (See K.N.Beena Vs. Muniyappan[1] of the supreme Court) 3. It is contention of the accused/respondent that the complainant was running chit business in which Shakeel Pasha subscribed a chit with him and that at the time of releasing prize amount, the accused gave a blank signed cheque to PW1 as security for payment of chit subscriptions properly by Shakeel Pasha. The accused did not examine himself to speak to the said facts. No evidence is produced by the accused to show that PW1 was running any chit business and that Shakeel Pasha subscribed a chit with PW1 and became a prized subscriber. No doubt, the complainant as PW1 admitted in cross-examination that except signature in Ex.P1 cheque, all other entries therein are in his own handwriting. From this piece of evidence of PW1, one cannot jump to the conclusion that contention put forward by the accused/respondent is correct. Comment of the lower appellate Court that issuing of blank signed cheque is not in accordance with law, is incorrect. It is not prohibited by the Act. In commercial parlance, there is practice of issuing blank signed cheques. In the case of blank signed cheque, it cannot be filled up without the consent of the party who signed it. In this case, there is no evidence on the part of the accused to show that he did not give any consent for filling up the cheque for Rs.70,000/-. 4. The only circumstance in favour of the accused in this case is correction or alteration in date of the cheque. Originally, the date of the cheque was 28.03.2005 and it was corrected as 28.03.2003 and the said correction is visible to naked eye. PW1 in cross-examination admits existence of the said correction in the date of Ex.P1. The said correction does not contain attestation by the accused. Correction in the date is an alteration on material aspect of the cheque and attracts mischief under Section 87 of the Act. The complainant/PW1 who has been in custody of Ex.P1 cheque until the date of its presentation for encashment, is the person who has to explain the said alteration in the date mentioned in Ex.P1. PW1 did not make any attempt to explain as to how the said correction in the date took place. The burden is on him as custodian of the cheque to show that the said correction was made with the consent of the accused. Admittedly, it was PW1 who made the said correction because the entire contents of Ex.P1 including the date, except signature of Ex.P1, are in the handwriting of PW1. In the absence of any explanation with regard to material alteration in the date of Ex.P1, the mischief under Section 87 of the Act comes into play and makes the said Negotiable Instrument a void document. It follows that Ex.P1 cheque is unenforceable. Finding of the lower Court on this aspect of the case is proper. In that view of the matter, the prosecution of the accused/respondent under Section 138 of the Act cannot lie. Finding of acquittal recorded by the lower appellate Court, is therefore unassailable. 5. Accordingly, the Criminal Appeal is dismissed. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:28.10.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.12 of 2006 Dt:28.10.2011 ysk [1] AIR 2001 SUPREME COURT 2895