N. Manjunath Swamy vs Venkatesha Pal

A.S. Pachhapure, J.—The appellant has filed these appeals challenging the acquittal of the respondent in Crl.A. No. 38/03 and 39/03 passed by the Sessions Judge in respect of the charge for the offences punishable u/s 138 of the Negotiable Instruments Act.

The facts relevant for the purpose of these appeals are as under:

As both the matters pertain to the same parties and there are common question of law and facts, they are taken together for consideration.

The appellant herein is the complainant, whereas the respondent is the accused. The appellant filed a complaint in C.C. No. 913/2000 stating that the accused approached him for financial assistance for an amount of Rs. 60,000/- in the month of January, 1999 and agreed to pay the interest at 2% p.m. and agreed to return the amount within four months. He waited for four months and as the accused did not repay the amount with the principal and interest, he approached the accused and demanded for the repayment and in turn the accused issued a cheque for of Rs. 60,000/- on 20.11.1999 drawn on State Bank of Mysore and requested the complainant to present the cheque after four months. The complainant presented the cheque on 11.5.2000 through Canara Bank and it returned with an endorsement as ''account closed''. The complainant issued a notice for repayment of the amount, which was not complied. In the circumstances, he sought for taking action against the accused with a demand for Rs. 60,000/-, with interest, notice charges, advocates fee, totally for an amount of Rs. 80,650/-.

Likewise in C.C. No. 704/01, the complainant filed the complaint stating that the accused borrowed a sum of Rs. 8,100/-in the month of July, 1991 with interest of 2% p.m. payable within two months and as the accused did not repay the amount on demand, the accused issued a cheque for Rs. 3,100/- on 27.10.1999 drawn on State Bank of Mysore, which on presentation was returned with an endorsement as ''account closed''. The complainant issued the notice of demand, which was not complied, in the circumstances, he claimed the amount of Rs. 8,100/- with interest of Rs. 1,620/-, notice charges of Rs. 250/- and advocate fee of Rs. 830/- totally for a sum of Rs. 10,800/- and requested the Court to take action for the offence punishable u/s 138 of the Negotiable Instruments Act.

During the trial of the first case in C.C. No. 913/2000, the complainant examined himself as PW1, a witness PW2 and in their evidence got marked the documents Ex. P1 to Ex. P8. The statement of the accused was recorded u/s 313 Cr.P.C. The accused has taken the defence of total denial. The accused got marked Ex. D1 the relevant entry i.e., 99 in Ex. P2. The defence evidence was not lead.

In the other case, the complainant examined himself as PW1 and witness PW2 and in their evidence got marked the documents Ex. P1 to Ex. P5. The statement of the accused was recorded u/s 313 Cr.P.C. The accused has taken the defence of total denial. He got marked Ex. D1 the relevant entry i.e., 99 in Ex. P2. The Trial Court on appreciation of the material on record convicted the accused for the offences punishable u/s 138 of the Negotiable Instruments Act and ordered to pay the fine. Aggrieved by the conviction in both the cases, the accused approached the Sessions Judge in Criminal Appeal No. 38/03 and 39/03. They were allowed by granting an order of acquittal in favour of the respondent.

Aggrieved by these orders of acquittal, the complainant has approached this Court in appeal.

I have heard the learned Counsel for the appellant and also the respondent. The point that arises for my consideration is:

Whether the acquittal of the respondent for the charge punishable u/s 138 of the Negotiable Instrument Act is illegal and perverse?

It is the contention of the Counsel for the appellant that the signature on the cheque has not been disputed and the notice of demand was not replied and when there is nothing to say that the amount, which was paid has been returned, in the circumstances, he submits, the acquittal of the respondent by the lower Appellate Court is illegal and perverse.

Per contra it is the contention of the Counsel for the respondent that there is a alteration of the cheque in both the cases and the year ''1990'' has been altered to ''1999'' and this alteration can be seen by naked eyes and hence he submits that lower Appellate Court has rightly granted the order of acquittal. The appellant has not made out any grounds to warrant interference.

I have perused the evidence led by the complainant in both the cases, the documents, including cheques in both the cases in addition to the demand notice. As it can be seen from cheque Ex. P1 in C.C. No. 913/2000, the cheque is dated 20.11.1999, whereas in the other case, cheque Ex. P2 is dated 27,10.1999. As far as the year of the cheque is concerned, it is seen that number ''zero'' after ''9'' has been corrected by putting a line and making it as 9. So the perusal of the date of the cheque and the year reveals that the year ''1990'' has been altered to as year ''1999''. Apart from this, it is relevant to note that below the cheque there is mention of year in which the cheque book was issued. It is mentioned as SB-10/90. So it reveals the fact that the cheque book was issued in the year 1990. The version of accused in addition to the alteration of the year, is probable and the complainant who had accepted the cheque dated 20.11.1990 has altered the same as 20,11.1999 and then presented the cheque, issued the notice after these alteration and thereafter has filed the complaint against the accused.

Likewise, the cheque Ex. P2 in C.C. No. 704/01, the year ''1990'' has been altered to ''1999'' by putting a line to the number ''zero'' and making it as ''9''. The cheque dated 27.10.1990 is altered as dated 27.10.1999. In this cheque also there is reference of the year of the cheque book issued. It is mentioned as SB-10/90.

It is the suggestion in the cross-examination of the complainant about the alteration made in the cheque and PW1-complainant admits in the cross-examination that the word ''zero'' has been corrected and has been made as ''9''. So this admission of PW1 further supports the version of the accused. Apart from this, the complainant admits that in the year 1990, he was given a D.D. for Rs. 50,000/- and another D.D. for Rs. 10,000/-. But the learned Counsel for the appellant submits that the said D.D.''s were with reference to some other transaction and not the transaction in question. But any how taking into consideration this alteration made in the cheques in both the cases, the cross-examination of PW1 and the fact that the account of the accused was closed in the year 1992, it is probable that the cheque could have been issued in the year 1990 having closed his account in the year 1992. So this is the ground, on the basis of which the lower Appellate Court held that the complaint has failed to establish the guilt of the accused for the offences punishable u/s 138 of the Negotiable Instruments Act. The appreciation of the evidence of the lower Appellate Court is just and proper and no such grave error has been pointed out by the appellant in the appreciation of the evidence.

Taking into consideration this aspect of the matter, I am of the opinion that the complainant has failed to establish the guilt of the accused u/s 138 of the Negotiable Instruments Act and the mere fact that the notice was not replied is not sufficient. In that view of the matter, these appeals have no merit and are dismissed accordingly.