Vidyasagar vs Narayanreddy

Huluvadi G. Ramesh, J.—Appeal is by the complainant against the order of the Pr. JMFC, Gulbarga in CC 3234/2004 on 3.5.2010 for the offence under S. 138 of the Negotiable Instruments Act. A private complaint was filed before the JMFC alleging dishonour of cheque for insufficient funds. According to the appellant/complainant, respondent had approached him for loan of Rs. 50,000/- for his family and other legal necessities during February 2003 and promised to pay the same in a short period. The, complainant gave Rs. 50,000/- to the accused and towards repayment of the loan, respondent issued a post dated cheque bearing No. 0821143 dated 10.9.2003. On presentation, the cheque was dishonoured for insufficient funds. The same was intimated to the accused by the complainant. Since there was no response, he issued a notice on 22.3.2004 which came to be received on 11.4.2004. In spite of the notice, for non-payment, complaint came to be filed. Learned Magistrate having taken cognizance, issued summons and recording ''the plea of not guilty'', posted the case for complainant''s evidence. Appellant was examined and eight documents were got marked. On behalf of the accused, he himself was examined as DW 1 and got marked two documents. The Magistrate having held the complainant failed to prove that accused had borrowed a sum of Rs. 50,000/- by issuing a post dated cheque drawn on Krishna Grameen Bank, Bidar Branch, acquitted the accused. Hence, this appeal.

Heard the counsel representing the parties.

According to the appellant''s counsel, material alteration has got nothing to do with the dishonour of cheque. The dishonour of the cheque was due to insufficient funds. The cheque which was issued by the accused was as it is and he was not aware of any material alteration. On presentation during 2004, the cheque was dishonoured. Though the trial court observed that there is material alteration, there is no such material alteration and accused ought to have been convicted.

On the other hand, counsel representing the respondent submitted, already loan amount was paid and there is no legally enforceable debt. Apart from that, as rightly observed by the trial court, there is material alteration. Alleging there are three transactions, the complainant tried to misuse the cheque which was given as security and on presentation, on dishonour, complaint is filed against the accused. It is stated, there is no legally enforceable debt and it is admitted there is material alteration as per S. 87 of the Negotiable Instruments Act and the cheque has to be rejected in entirety in the absence of any explanation as to material alteration.

As is submitted by the appellant''s counsel, the transaction was during 1997, and there are three transactions. But it is admitted there is only one transaction. The cheque was presented and when it was dishonoured for insufficient funds, might be that is made a ground for which the cheque was dishonoured. The trial court has also taken note of the material alteration. Apart from, that there is inconsistency as noted by the trial court. The accused had borrowed a loan of Rs. 50,000/- and in the sworn statement, it is shown as Rs. 60,000/- and there is discrepancy in the amount mentioned.

According to the respondent, he has already returned the amount and the complainant having retained the cheque, has presented the same by altering the date of the cheque. This has been noted by the trial court and rightly, the claim of the complainant came to be rejected. The trial court itself has noted that the complainant admitted in the cross-examination that there is only one transaction between him and the accused. However, a stand was taken by the complainant that there were three other transactions.

There might be material alteration but the cheque has been dishonoured for insufficient funds. Learned Magistrate has relied upon the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, to hold that complainant failed to prove the case against the accused beyond reasonable doubt. But the latest decision in Rangappa Vs. Sri Mohan, holds the field as to initial presumption in favour of the complainant and the said presumption has to be rebutted by the accused. But in the case on hand, presumption has been drawn against the complainant, in favour of the accused, thereby the trial court has committed an error. Thus, the matter has to be remanded to the trial court to dispose of the same according to law expeditiously, in view of the ratio laid down in Rangappa''s case cited supra, also affording an opportunity to both the parties to put forth their case. Ordered accordingly. Appeal is allowed Send back the records forthwith.