Sri S.N. Murali Sharma vs Sri R. Ravi

N. Ananda, J.—The learned Magistrate has convicted respondent (hereinafter referred as ''accused'') for an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''). Therefore, accused was before I-appellate Court. The I-appellate court reversed the judgment of conviction. Therefore, appellant (hereinafter referred as ''complainant'') is before this court. I have heard learned counsel for complainant and learned counsel for accused.

The averments of complaint and evidence adduced by complainant are stated thus:--

The complainant had lent a sum of Rs. 90,000/- to accused on 05.01.2003 and accused had promised to repay the money within a period of three months. The accused did not repay the money as agreed. The accused issued a cheque dated 26.03.2003 for a sum of Rs. 90,000/- in favour of complainant. On presentation, cheque was dishonoured. There was no response to legal notice caused u/s 138 of the Act. The accused has not denied transaction in entirety. The accused had contended that he had borrowed a sum of Rs. 10,000/- from complainant and issued the cheque and the same has been misused by complainant to initiate the instant complaint.

The complainant had also filed a complaint u/s 138 of the Act against the brother of accused namely Venkataramanappa by materially altering the cheque drawn for a sum of "Rs. 1,000/-" to "Rs. 90,000/-". In the instant case also, complainant has materially altered cheque. The complainant did not have financial capacity to lend a sum of Rs. 90,000/- to accused. The learned trial Judge has accepted the evidence of complainant and convicted accused by placing reliance on the presumption available u/s 139 of the Act.

The learned Judge of I-appellate court on re-appreciation of evidence has held that complainant has failed to prove his financial capacity to lend a sum of Rs. 90,000/- to accused. The learned Judge of I appellate court has held that case of complainant that he had lent a sum of Rs. 90,000/- to accused, without charging interest and without obtaining any security is not free from reasonable doubt.

I have reconsidered the judgments of courts below and I have gone through the records.

As could be seen from dishonoured cheque, the contents of cheque are not in the handwriting of accused. The numerical "Rs. 10,000/-" has been altered to numerical "Rs. 90,000/-". This material alteration is visible to naked eyes. It is not the case of complainant that accused had issued a signed blank cheque and accused had authorised complainant to fill in the contents of cheque.

As could be seen from the contents of cheque, except signature, the other contents of cheque such as name of drawee and date of cheque are in different handwriting. In the circumstances, complainant should have offered explanation as to how and by whom the contents of cheque were filled in. As already stated, material alteration of numerical "Rs. 10,000/-" by "Rs. 90,000/-" is visible to naked eye.

The learned counsel for complainant would submit that accused had not caused reply notice and he had not raised plea that he had borrowed a sum of Rs. 10,000/- at the earliest opportunity.

The learned counsel for accused would further submit that signature on cheque is admitted by accused and burden of proof would shift upon accused to rebut presumption u/s 139 of the Act.

The accused had not caused reply notice. The issuance of notice u/s 138(c) of the Act is to give an opportunity to bonafide drawer of cheque to make arrangements to honour the cheque, within a stipulated time. The accused does not forfeit his right to put forth his defence, if he does not cause reply notice. Above all, it is the duty of court to examine negotiable instrument to find out whether it is materially altered or not.

In the case on hand, material alteration of numerical "Rs. 10,000/-" by "Rs. 90,000/-" is visible to naked eyes. As already stated, it is not the case of complainant that accused had issued a signed blank cheque to complainant. Therefore, defence of accused that he had borrowed a sum of Rs. 10,000/- from complainant and in that connection, accused had issued a signed blank cheque to complainant appears probable.

The complainant has admitted that he was working as a priest. In the circumstances, case of complainant that he had lent a sum of Rs. 90,000/- to accused, without charging interest and without obtaining any security from accused looks improbable.

The learned counsel for complainant, relying on the judgment of the Supreme Court, reported in K.N. Beena Vs. Muniyappan and Another, , would submit that mere plausible explanation offered by accused is not sufficient to rebut presumption u/s 139 of the Act.

The learned counsel for complainant has relied on judgment of this court, reported in Sri N. Hasainar Vs. Sri M. Hasainar, to contend that complaint cannot be dismissed only on the ground that complainant has failed to prove that he has financial capacity to lend money.

In the discussion made supra, I have held that cheque is materially altered and material alteration is visible to naked eyes. I have held that case of complainant that he had lent a sum of Rs. 90,000/- to accused, without charging interest and without obtaining security is improbable. In the circumstances, presumption u/s 139 of the Act is not available to complainant. The defence of accused that he had borrowed a sum of Rs. 10,000/- from complainant and issued a signed blank cheque appears probable in the context of the fact that the contents of cheque were not filled up by accused. It is not the case of complainant that he had obtained a signed blank cheque from accused. Therefore, explanation offered by accused is sufficient to rebut the presumption available u/s 139 of the Act.

In the discussion made supra, I have assigned the reasons to disbelieve the case of complainant. It is not a case where complaint was dismissed only on the ground that complainant had no financial capacity to lend money to accused. Therefore, what has been held in the aforestated decision is not applicable to the facts of the instant case. There are no reasons to interfere with the judgment of I-appellate court. Therefore, I pass the following:--

ORDER

The appeal is dismissed.