HON’BLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No. 1680 of 2004 O R D E R: The revision petitioner was the sole accused in CC No.415 of 1998 on the file of the III Additional Judicial First Class Magistrate, Tirupathi. The complaint was lodged by the complainant (PW-1) claiming that in discharge of the debts due, the accused executed Exs.P1 and P2 cheques and that the cheques bounced when presented. P.W.1 consequently, complained that the accused was guilty of the offence punishable u/sec.138 of the Negotiable Instruments Act (for short ‘the Act’). The learned trial Judge agreed with the claim of the complainant and convicted the sole accused for the offence u/sec.138 of the Act and sentenced him to rigorous imprisonment for a period of six months and also fine of Rs.3,00,000/- which was equivalent to the amount covered under Exs.P1 and P2 cheques. The appellate court confirmed the conviction and sentence recorded by the trial court. Hence this revision. 2. There is no representation for the complainant, who is the 1st respondent herein. Already notice was served upon him. Indeed the complainant entered appearance. However, as on today, no one appeared on behalf of the complainant. Hence, this revision is disposed of hearing the leaned counsel for the accused/revision petitioner and the learned Public Prosecutor and without hearing the complainant. 3. It is the case of Sri J.Ugranarasimha, learned counsel for the petitioner that the complainant failed to establish the subsistence of debt and that further this is a case where Exs.P1 and P2 became unenforceable u/Sec.87 of the Act as they were materially altered before they were presented to the Bank. Thus, it is the contention of the learned counsel for the accused that the accused was not guilty of the offence u/Sec.138 of the Act. 4. For the offence u/sec.138 of the Act, there must be existence of a debt. Indeed, it is the case of the complainant that the accused borrowed Rs.2,50,000/-, Rs.1,50,000/- and Rs.50,000/- totaling Rs.4,50,000/- on three different occasions, and when P.W.2 mediated the dispute between the accused and the complainant, the accused issued Exs.P1 and P2 cheques for Rs.1,00,000/- and Rs.2,00,000/- respectively. P.W.1 further contended that the amount borrowed by the accused could be proved by the income tax returns of the complainant. Exs.P16 and P18 are the Photostat copies of the Income Tax returns of the complainant P.W.1. Ex.P17 is the Photostat copy of the bank passbook of the complainant. 5. It may be noted that none of them disclosed the name of the accused as the borrower of Rs.4,50,00/- from the complainant even to assume that the cheques under Exs.P1 and P2 were issued by the accused in discharge of the amounts referred to in the income tax returns and the bank passbook. Further the income tax returns are not the certified copies but are Photostat copies. 6. It is rather unsafe to rely on such photostat copies to hold that the complainant established the subsistence of the debtor and creditor relationship between the accused and the complainant. I am not able to satisfy from Exs.P16 to P18 that they established that the accused borrowed monies from PW.1. Thus Exs.P1 and P2 are not proved to be executed in discharge of the subsisting debt. Conviction u/.Sec.138 of the Act is permissible when there was a subsisting debt and not otherwise. Where the very debt has not been established assuming that the accused executed Exs.P1 and P2, it would not create criminal liability against the accused. I agree with the contention of the learned counsel for the accused that the complainant failed to make out the case against the accused for the offence u/Sec.138 of the Act, since the complainant failed to establish the subsistence of the debt, which is the condition precedent for the application of Sec.138 of the Act. 7. The learned counsel for the accused also attacked the case of the complainant on the ground that the complainant received blank cheques from the accused and filled up the amounts at his convenience and that Exs.P1 and P2 do not enjoy the character of a Negotiable Instrument as defined by the Act. Curiously, PW.1 himself admitted that the accused merely signed the cheques under Exs.P1 and P2 and that the complainant filled up the amounts and the names in Exs.P1 and P2. 8. Sec.6 of the Act reads as follows: “A cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.” 9. It is the contention of the learned counsel for the accused that when blank cheque was signed by the accused, it is not tatamount to issue the cheque within the meaning of Sec.138 of the Act. The appellate court would appear to have relied upon Satishjayantilal Shah Vs. Pankaj Mashruwala[1] wherein it was held that entries in the cehque need not be made by the maker of the cheque so long as the signature in the cheque is by the drawer. If a cheque is drawn by the drawer by merely signing the same and the other columns are filled up under the instructions of the drawer, indeed, it would be a cheque within the meaning of Sec.6 and 138 of the Act. On the other hand, if the drawer gives a blank cheque duly signing the same and the drawee subsequently filled up the columns without the consent of the drawer, it cannot be a cheque within the meaning of the Act. The decision of the Gujarat High Court does not apply to the facts of the present case where it is not stated by P.W.1 that he filled up the columns in the cheque upon the instructions and with the consent of the accused. The benefit of doubt from such a situation should accrue in favour of the accused. 10. There is a gray area in this case why and how PW.1 filled up the blanks in the cheque. When PW.1 did not specifically claim that the blanks were filled up upon the instructions of the accused, I agree with the contention of the learned counsel for the accused that the cheques under Exs.P1 and P2 are deemed to have been materially altered as entries were made in the cheques without the consent of the accused and that when the cheques were materially altered, they became unenforceable. 11. The complainant cannot have any grouse in such an event when such cheques bounced. I therefore, am not able to agree with the finding of the trial court and the appellate court that the complainant established that the cheques were issued in connection with the subsisting debt and that the cheques were duly issued by the accused. On both the counts, the complainant failed to establish the case against the accused. Hence, the accused is entitled to acquittal of the offence punishable u/Sec.138 of the Act. Consequently, the revision is liable to be allowed. 12. In the result, the criminal revision case is allowed. The revision petitioner is found not guilty of the offence u/Sec.138 of the Act and accordingly, is acquitted. His bail bonds shall stand discharged. The fine amount /compensation amount, if already paid by the accused, shall be refunded to him. _____________ K.G.SHANKAR,J Dt. 15.7.2011 Note: LR Copy to be marked B/o Mjl/* HON’BLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No. 1680 of 2004 Dt. 08.07.2011 Mjl/* [1] 1996 Crl.L.J.3099 (Gujarat High Court)