THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Criminal Appeal No. 328 OF 2008 ORDER: Unsuccessful complainant is the appellant. He filed S.T.C.No.78 of 2005 on the file of Additional Judicial Magistrate of the First Class, Anantapur, alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short, the Act) against the accused/respondent. After trial, in which the complainant examined himself as PW1 and examined PWs.2 and 3 and marked Exs.P1 to P7 and the accused examined himself as DW1 and examined DW2 and marked Exs.D1 to D17, the lower Court acquitted the accused finding him not guilty of the offence. Exs.P1 and P2 cheques dated 25.7.2005 for Rs.5,00,000/- each were dishonored as per Exs.P3 to P5. After issuing Ex.P6 notice which was received by the accused as per Ex.P7-postal acknowledgment, the complainant filed a case in the lower Court. The accused gave Ex.D4 reply notice to the complainant for Ex.P6 notice denying allegations therein. According to the complainant, he lent Rs.10,00,000/- to the accused for purchasing a house in April, 2005 and towards discharge of the said debt, the accused issued Exs.P1 and P2 cheques for Rs.5,00,000/- each in favour of the complainant. The accused in Ex.D4 reply notice and as DW1 denied having borrowed any amount much less Rs.10,00,000/- from the complainant. According to DW1, the complainant has no capacity to lend Rs.10,00,000/-. It is further case of the accused that he lost cheque book containing several cheques including the leaves used for Exs.P1 and P2. He gave Ex.D17 report to the Kanekal police on 13-07-2005. DW2 is the Assistant Sub Inspector of Police, Kanekal Police Station. As per his evidence, the accused gave Ex.D17 report on 13- 07-2005 and after getting local enquiry made through a local police constable, he issued Ex.D7 certificate dated 16-07-2005 about receipt of the said report from the accused. As per evidence of DWs.1 and 2 and Exs.D7 and D17, loss of cheque book containing Exs.P1 and P2 leaves was reported by the accused to the police about 12 days prior to the date contained in Exs.P1 and P2. The appellants’ counsel contended that there is presumption under Section 139 of the Act regarding the cheques being supported by legally enforceable liability. At the same time, the presumption under Section 139 of the Act is a rebuttable presumption. When the accused examined himself as DW1 and let in his evidence in support of his case, the presumption under Section 139 of the Act loses its importance. Then, it is for the complainant to prove the existence of legally enforceable liability by leading acceptable evidence. Admittedly, PW1 had no money to advance to the extent of Rs.10,00,000/- to the accused. According to PW1, his father PW3 provided the funds therefor. PW3 is owner of house bearing Door No.13-3-144 of Sreenivas Nagar, Anantapur. PW3 says that in August, 2005, he executed an agreement for sale in respect of the said house in favour of Parveen Khanam Begum and received bankers cheque for Rs.7,30,000/- on 9-9- 2005. Ex.D5 is copy of registered sale deed dated 9-9- 2005 executed by PW3 in favour of Parveen Khanam Begum. According to the complainant, he lent Rs.10,00,000/- to the accused in April, 2005 and Exs.P1 and P2 cheques were issued by the accused on 25-7- 2005. Ex.D5 registered sale deed is long subsequent to the said dates. PW3 further says that in March, 2005, he sold the said house to one C.Lakshmanna for Rs.7,80,000/- under an agreement for sale and received Rs.5,00,000/- from him as advance and that in May, 2005, C.Lakshmanna refused to obtain sale deed on the ground that the house is situated near a Mosque and that subsequently, he executed the sale deed dated 9-9-2005 in favour of Parveen Khanam Begum. The lower Court commented that PW3 did not lead any evidence of C.Lakshmanna nor file any agreement said to have been executed by PW3 in favour of C.Lakshmanna nor proof of delivery of Rs.5,00,000/- by C.Lakshmanna to PW3. In the absence of any such evidence before the Court, the lower Court rightly came to the conclusion that PW3 did not provide any funds to PW1 for lending the same to the accused. Further, PW3 himself deposed that his son PW1 started his business with a capital of Rs.35,000/-. But, PW1 claims that he had started his business with capital of Rs.1,00,000/- and that he closed the said business in the year 2005 itself. Further, the complainant himself borrowed money from the accused under Exs.D8 to D14 pronotes executed by him in the months of March, April and May, 2005. On the basis of the said pronotes, the accused filed suit O.S.No.99 of 2006 and obtained decree on 15-3-2007 against the complainant. All these circumstances were taken by the lower Court to find that presumption under Section 139 of the Act stood rebutted. The lower Court rightly came to the conclusion that Exs.P1 and P2 cheques were not drawn by the accused in favour of the complainant and that they were manipulated by the complainant with the leaves containing the signatures of the accused and which were lost by the accused. I do not find any reason to interfere with the finding of acquittal recorded by the lower Court. In the result, the criminal appeal is dismissed. ___________________________________ SAMUDRALA GOVINDARAJULU,J Rkk Dated: 31-1-2011