Sammeta Sriha Vs. the Statte of Andhra Pradesh Represented - Court Judgment

Excerpt:
honble dr. justice b.siva sankara rao criminal appeal no.312 of200804-06-2014 sammeta srihari....appellant the statte of andhra pradesh represented by its public prosecutor and another...respondents !counsel for the appellant counsel for respondents: : ?.cases referred:1. air2003sc20352.(2000) 2 scc3803.(2001) 8 scc4584.(2006) 3 scc305.(2005) 12 scc16.(2009) 2 scc5137.air2008sc13258.air2010sc18989.air2001sc389710.air1999sc100811.air2002sc18212.air2008sc289813.1971 (1) an.w.r.65 14.2004 crl.l.j.58 15.2004 (1)bc3416.2014 (1) alt (crl) 44(sc) 17.air2005sc43918.appeal(crl)664 of2002 dated2009-2005 19.2005 (2) alt-27 (fb) 20.2005 (crl-j)-4209(ap) 21.air2003sc182honble dr. justice b.siva sankara rao criminal appeal no.312 of2008judgment: this criminal appeal is filed by the.....

Judgment:

HONBLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL APPEAL No.312 OF200804-06-2014 Sammeta Srihari....Appellant The Statte of Andhra Pradesh represented by its Public Prosecutor and another...ResponDENTS !Counsel for the APPELLANT Counsel for Respondents: : ?.Cases referred:

1. AIR2003SC20352.(2000) 2 SCC3803.(2001) 8 SCC4584.(2006) 3 SCC305.(2005) 12 SCC16.(2009) 2 SCC5137.AIR2008SC13258.AIR2010SC18989.AIR2001SC389710.AIR1999SC100811.AIR2002SC18212.AIR2008SC289813.1971 (1) AN.W.R.65 14.2004 CRL.L.J.58 15.2004 (1)BC3416.2014 (1) ALT (CRL) 44(SC) 17.AIR2005SC43918.APPEAL(CRL)664 OF2002 DATED2009-2005 19.2005 (2) ALT-27 (FB) 20.2005 (CRL-J)-4209(AP) 21.AIR2003SC182HONBLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL APPEAL No.312 OF2008

JUDGMENT

: This Criminal Appeal is filed by the appellant-complainant Sri Sammeta Srihari assailing the acquittal judgment, dated 10.09.2007, passed by the learned II Additional Judicial Magistrate of 1st Class, Machilipatnam, in the private complaint case vide C.C.No.339 of 2005 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for brevity 'N.I. Act').

2. The case of the complainant is that, the accused obtained hand loan of Rs.1,25,000/- for her family benefit on 06.01.2005 agreeing to repay the same within two months and in turn the accused issued Ex.P.1 post-dated cheque bearing No.449217, dated 05.03.2005, for said amount of Rs.1,25,000/- in his favour drawn on State Bank of India, Machilipatnam Branch. When the complainant sent for collection of the cheque through his banker, same was dishonoured on the premise of ".insufficient funds". vide Ex.P.2 memo, dated 18.03.2005 with Ex.P.3 letter dated 29.03.2005. The complainant, therefore, got issued Ex.P.4 legal notice dated 19.04.2005, demanding the accused to repay the amount covered under the cheque (Ex.P.1). The accused received the same on 23.04.2005 under Ex.P.5 acknowledgement. He also got issued reply notice on 25.04.2005 vide Ex.P.6 with false allegations and failed to repay the amount. Hence the complaint.

3. After recording sworn statement of the complainant, the case was taken cognizance; the accused, who appeared before the Court pursuant to the summons and after supply of case copies under Section 207 of the Code of Criminal Procedure (for brevity, Cr.P.C.), was when questioned on substance of accusation under Section 251 Cr.P.C., she pleaded not guilty.

4. During the course of trial, on behalf of the complainant, complainant was examined as PW.1 and got marked Exs.P.1 to P.6 supra. The accused but for cross examination of PW.1, did not adduce any independent evidence.

5. After completion of the evidence on the side of the complainant, the accused was examined under Section 313 Cr.P.C., and she denied the incriminating material levelled against her.

6. After appreciating the evidence, both oral and documentary, the trial Court held the accused not guilty and acquitted her. Impugning the same, the complainant preferred the present appeal.

7. The contentions in the grounds of appeal as well as the submissions of the learned counsel appearing for the appellant are that, the lower Courts acquittal judgment is contrary to law, weight of evidence and probabilities of the case; that the lower Court failed to see that when there is nothing to show the debt how not legally enforceable and once proved the debt and issuing of cheque for the same and also the presumptions in regard to the cheque issued were for the legally enforceable debt to rebut by accused, the Court below went wrong in dismissing the complaint with no basis and hence to allow the appeal by setting aside the acquittal judgment of the lower Court and to punish the accused according to law.

8. The learned counsel appearing for the respondent-accused, on the other hand, represents that it was a clear case of misuse of blank cheques obtained by the complainant and with material alteration, the accused filed the case falsely and there are no merits in the appeal, hence to dismiss the appeal confirming the lower Courts acquittal judgment supported by reasons for nothing to interfere.

9. Now the points that arise for consideration are: (1). Whether there is borrowal of amount by accused as hand loan and issuance of the cheque and if so there is no legally enforceable debt to make liable the accused for the offence under Section 138 N.I. Act as held by the lower Court in its acquittal judgment, and if not the same is unsustainable to set-aside and with what findings?. (2). To what result?.

10. In re. Point No.1:

10. (A). Before adverting to the merits of the matter, it is beneficial to quote; the provisions incorporated in Chapter XVII of the N.I. Act make a civil transaction to be an offence by fiction of law and with certain (rebuttable) presumptions that shall be drawn. Sections.138 to 142 are incorporated in the N.I.Act as Chapter XVII by the Banking Public Financial Institutions and Negotiable instruments Laws (Amendment) Act, 1981 (66 of 1988) which came into force w.e.f. 01-04-1989 and the N.I. Act was further amended by Act, 2002 (55 of 2002) which came into force w.e.f. 06-02-2003 incorporating new sections 143 to 147 in this Chapter XVII and further some of the existing provisions not only of the Chapter XVII, but also of other Chapters amended to overcome the defects and drawbacks in dealing with the matters relating to dishonour of cheques. 10-(B). The object and intention of these penal provisions of Chapter XVII (Sections 138147), in particular, Sections 138 & 139 (besides civil remedy), are to prevent issuing of cheques in playful manner or with dishonest intention or with no mind to honour or without sufficient funds in the account maintained by the drawer in Bank and induce the Payee/Holder or Holder in due course to act upon it. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. Since a cheque that is dishonoured may cause uncountable loss, injury or inconvenience to the Payee due to the latters unexpected disappointment, these provisions incorporated are in order to provide a speedy remedy to avoid inconvenience and injury to the Payee and further to encourage the culture of use of cheques and enhancing credibility of the instruments as a trustworthy substitute for cash payment and to inculcate faith in the efficacy of Banking operations - GOA PLAST (PVT.) LTD. v. CHICO URSULA DSOUZA . 10-(C). To fulfill the objective, the Legislature while amending the Act has made the following procedure: In the opening words of the Section 138 it is stated: ".Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid,---------, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act (See Sec.143), be punished ----. Provided, nothing contained in this section shall apply unless,-(a), (b); and (c) Explanation---(supra).". ".(i) Under Section 138 a deeming offence is created by fiction of law. (ii) An explanation is provided to Section 138 to define the words ".debt or other liability". to mean a legally enforceable debt or other liability.". (iii) In Section 139, a presumption is ingrained that the holder of the cheque received it in discharge of debt or other liability. (iv) Disallowing a defence in Section 140 that drawer has no reason to believe that cheque would be dishonoured. (v) As per Section 146 (new section) the production of the Banks slip or Memo with official mark denoting that the cheque has been dishonoured is prima facie evidence for the Court to presume the fact of dishonour of such cheque unless such fact is disproved by the accused. 10-(D). Further the provision for issuing notice within fifteen days (amended as thirty days by the amended Act, 55 of 2002, w.e.f.06-02-2003) under section 138 after dishonour is to afford an opportunity to the Drawer of the cheque to rectify his mistakes or negligence or in action and to pay the amount within fifteen days of receipt of notice, failing which the drawer is liable for prosecution and penal consequences. 10-(E). Reasonability of cause for non-payment is not at all a deciding factor. Mensrea is irrelevant. It is a strict liability incorporated in public interest. 10-(F). Availability of alternative remedy is no bar to the prosecution 10-(G). In the words-where any cheque, the word any suggests that for whatever reason if a cheque is drawn on an account maintained by him with a Banker in favour of another person for the discharge of any debt or other liability, the liability cannot be avoided in the event of the cheque stands returned by the Banker unpaid. 10-(H). In Suman Sethi v. Ajay K. Churiwal and Another , it was held of the legislative intent as is evident from Section 138 of the Act that, if for the dishonoured cheque demand is not met within 15 days of the receipt of the notice, the drawer is liable for conviction. If the cheque amount is paid within above period or before the complaint is filed, the legal liability under Section 138 ceases to be operative and for the recovery of other demands such as compensation, costs, interest etc. separate proceedings would lie. If in a notice any other sum is indicated in addition to the amount covered by the cheque that does not invalidate the notice. 11-A. In K.N.Beena Vs. Muniyappan & Another at paragraph 7, it was observed: In this case admittedly the accused has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denial of averments in his reply dated 21.5.1993 were sufficient to shift the burden of proof on to the complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The accused had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The accused not having led any evidence could not be said to have discharged the burden of proving that the cheque was not issued for a debt or liability. 11-AA. No doubt, this approach of accused has to lead cogent evidence during trial in rebutting the presumptions and in proof of his defence, is explained by Apex Court in Narayan Menon V. State of Kerala as follows:

11. B. The Apex Court in NARAYAN MENON (4 supra) held that once the complainant shown that the cheque was drawn by the accused on the account maintained by him with a banker for payment of any amount in favour of the complainant from out of that account for its discharge and the same when presented returned by the Bank unpaid for insufficiency of funds or exceeds arrangement, such person shall be deemed to have been committed an offence under Section 138 of N.I. Act. What Section 139 of the Act speaks of the presumption against the accused to rebut is the holder of a cheque received the cheque of the nature referred in Section 138 of the Act for discharge of debt. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Accused need not enter into the witness box and examine other witnesses in support of his defence. Accused need not disprove the prosecution case in its entirety. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the ".prudent man".. 11-C. There are presumptions (besides the general presumptions under the Indian Evidence Act) specially provided in respect of a negotiable instrument under Section 118 clauses (a) to (g) of the Act and for the dishonour of cheque relating to criminal liability under 139 and apparently a legal fiction though strictly not as per the Explanation to Section 138-of the Act, for the purpose of this section, debt or other liability means a legally enforceable debt or other liability. Section 118: Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made: Clause (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. (b) to (g)----". Section 139: Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. Presumptions both under Sections 118(a) and 139 of the Act are rebuttable in nature. What would be the effect of the expressions May Presume, Shall Presume and Conclusive Proof has been considered by the Apex Court in Union of India (UOI) vs. Pramod Gupta (D) by L.Rs. , in the following terms: It is true that the legislature used two different phraseologies ".shall be presumed". and ".may be presumed". in ------ but the same would not mean that the words ".shall presume". would be conclusive. The meaning of the expressions ".may presume". and ".shall presume". have been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the Court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression ".shall presume". cannot be held to be synonymous with ".conclusive proof. In terms of Section 4 of the Evidence Act, whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The Apex Court in its later expression in KUMAR EXPORTS PVT. LTD. vs. SHARMA CARPETS held in this regard that- presumptions that applied among clauses (a) to (g) of Section 118 also, like the presumption under Section 139 of the Act, as per Section 4 of the Evidence Act, are the rebuttable presumptions for which the burden is on the accused. However, to rebut the presumptions if a case is made out by accused either by pointing out from the case of the complainant including very documents and cross-examination or by examining any person and need not be always by coming to witness box (as laid down in Narayan Menon (4 supra)) and KRISHNA JANARDHAN BHAT vs. DATTATRAYA G. Hegde . 11-D. Further, as per the expression of the Apex Court in RANGAPPA vs. MOHAN (3-Judges Bench) paras-9 to 15 referring to GOA PLASTS (1 supra), Krishna Janardhan Bhat (7 supra) by distinguishing at para-14 saying the observation in KRISHNA JANARDHAN BHAT (supra) of the presumption mandated by Section 139 does not indeed include the existence of a legally enforceable debt or liability is not correct, though in other respects correctness of the decision does not in any way cause doubted; by also referring to Hiten P. Dalal v. Bratindranath Banerjee holding at paras-22 and 23 therein of the obligation on the part of the Court to raise the presumption under 138, 139 and 118 of the N.I. Act, in every case where the factual basis for raising the presumption has been established since introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused, as a presumption of law distinguished from a presumption of fact as part of rules of evidence and no way in conflict with presumption of innocence and the proof by prosecution against the accused beyond reasonable doubt, but for saying to rebut the accused can discharge the burden showing reasonable probability of non-existence of the presumption of fact and to that proposition, the earlier expression in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal para-12 showing the burden on the accused is to bring on record by preponderance of probability either direct evidence or by referring to circumstances upon which he relies, rather than bare denial of the passing of the consideration; apparently that does not appear to be of any defence, to get the benefit in discharge of the onus against, also held referring the M.M.T.C. Ltd. and another v. Medchl Chemicals & Pharma (P) LTD that where the accused able to show justification of stop payment letter even from funds are there, but no existence of debt or liability at the time of presentation of cheque for encashment to say no offence under Section 138 of the N.I. Act made out in discharge of the burden. It was concluded referring to the above, including of Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm & Ors paras-14 and 15 that the initial presumption lays in favour of the complainant and Section 139 is an example of a reverse onus clause, which has been included in furtherance of the legitimate objection of improving the credibility of the negotiable instruments. While Section 138 specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. Bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions and the test of proportionality should guide the construction and interpretation of reverse onus clause and the accused cannot be expected to discharge an unduly high standard or proof and in the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden to discharge by preponderance of probabilities by raising creation of doubt about the existence of a legally enforceable debt or liability to fail the prosecution and for that the accused can rely on the material submitted by the complainant also in order to raise such a defence and he may not need to adduce any evidence of his own. 11-DD. It was also observed in para-15 that the accused appear to be aware of the fact that the cheque was with the complainant, further-more the very fact that the accused has failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainants version. It was also held by this court way back in Chapala Hanumaiah Vs. Kavuri Venkateshwarlu that having received and acknowledged the statutory legal notice after dishonour of cheque, non-giving of reply to said legal notice, improbablises the defence version, as any prudent person under the said circumstances should have, but for no defence to reply. 11-E. If at all, there is any payment including part payment or adjustment to be considered for deduction while enforcing the amount covered by the dishonoured cheque for its consequences, the burden is on the accused as per settled law to prove said discharge or adjustment. In this regard, in M/s. Thekkan and Company vs. M. Anitha , it was held by the Kerala High Court that nothing precludes the Court under Section 138 of the Act for taking into account prior payments made before the presentation of the cheque or before receipt of notice in deciding whether the amount due under the cheque has been fully paid, if not for continuing the prosecution. In another expression of same High Court in R. Gopikuttan Pillai vs. Sankara Narayanan Nair also it was held that accused is bound to prove payment of entire amount within 15 days of receipt of notice and any part payment made before or after notice cannot absolve liability from the criminal prosecution under Section 138 of N.I. Act and thereby the trial Court went wrong in acquitting the accused for part payment made and not of the entire due under the cheque. 11-F. Coming to the validity of filing the case by Complainant against the accused, if any of them a legal entity, somebody-a human agency must represent the legal entity, if it is a complainant, in filing complaint, giving sworn statement and to give evidence during trial. 11-F(i). On the question of complaint filed by legal representatives or the Power of Attorney Holder is maintainable or not and the Power of Attorney Holder is competent to give evidence or not, by interpretation of Section 142(a) r/w. Section 138 of the NI Act, three Judge Bench of the Apex Court in A.C. Narayanan Vs State of Maharashtra (Crl Appeal No.73-2007) & Shri G. Kamalakar Vs M/s. Surana Securities Ltd(A.P)-(SLP-Crl No.2724-2008) held, referring to M.M.T.C. Ltd (supra) & J.V. Bhojwani Vs. Indus-ind Bank Ltd holding that there is no serious conflict between the two expressions and that a legal representative or Power of Attorney Holder of the complainant can no way barred to file complaint and to appear for hearings and also can verify on oath and depose in Court on behalf of the complainant, but not in own name of the Power of Attorney Holder. It is open to the Magistrate for that to rely on the affidavit filed by complainant. An explicit assertion as to knowledge of Power of Attorney Holder about the transaction must be specific in the complaint, as the Power of Attorney Holder who has no knowledge about the transaction, cannot be examined as a witness. A power of attorney cannot however delegate his functions to another person without specific clause permitting the delegation in the power of attorney. 11-F(ii). Coming to liability of the legal entity as accused, besides the entity the persons responsible for its day-today affairs even personally concerned: Section 141 of the Act is an instance of specific provision that in case an offence under Section 138 is committed by a company, the criminal liability for dishonour of a cheque will extend to the officers of the company. As a matter of fact, Section 141 contains conditions which have to be satisfied before the liability can be extended. Inasmuch as, the provision creates a criminal liability, the conditions have to be strictly complied with. In other words, the persons who had nothing to do with the matter, need not be roped in. An entity being a juristic person, all its deeds and functions are the result of acts of others. Therefore, the officers of the company, who are responsible for the acts done in its name are sought to be made personally liable for the acts which result in criminal action being taken against the entity. In other words, it makes every person, who, at the time of commission of offence, was in-charge of and responsible for the conduct of business of the entity, as well as the entity, liable for the offence. It is true that the proviso to sub-section enables certain persons to prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent commission of the offence. The liability under Section 141 of the N.I. Act is sought to be fastened vicariously on a person connected with the company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. 11-F(iii). In this regard, in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla (3 Judges Bench) held in answering to the questions posed in the Reference as under: (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. (b) The answer to question posed in sub-para (b) has to be in negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases. (c) The answer to question (c) has to be in affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office, they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141. The Reference has been answered. 11-F(iv). Further the Full Bench of this Court in K. Ramachandra Rao Vs State of A.P. held the same, with observations at para-14 that if a Company or other Juristic person gives the complaint, it cannot be examined. Somebody on its behalf who can speak about the facts of the case would be examined when he presents the complaint on behalf of the juristic person and the same analogy applies even to a power of attorney holder. 11-G. However, where accused or complainant a proprietary concern, proprietary concern is not a separate juristic entity, other than the individual styling with that name being its proprietor and thus there is no application of the above propositions, but for to the extent of his LRs or GPA to represent. This Court in Rohit Parushram and others Vs. Dhiraj Rawal and others held at para-5 that, for cheque drawn by accused as proprietor of proprietary concern, the proprietary concern was not made party co- accused with the proprietor in individual name, makes no difference because liability of proprietary concern and proprietor is joint and several. 11-H. The non examination of a material witness to the case or non-filing of a material document is fatal to the case of the complainant vide decisions in C.Antony Vs. K.G.Raghavan Nair and Narayan Menon (4 supra).

12. From the above legal propositions, coming to decide on the facts from oral, circumstantial and documentary evidence, how far it proved the case of the complainant and from drawing of presumptions and inferences if any, how far rebutted by accused are concerned, to prove the case of the complainant that the accused borrowed hand loan of Rs.1,25,000/- for family benefit on 06.01.2005 agreeing to repay within two months, but for the oral evidence of PW.1, there is no proof regarding means of complainant, source of lending such huge amount available with him and nature of acquaintance to give hand loan of such huge amount without even taking any receipt or letter or undertaking or promissory note or the like, that too without interest, no foundation was laid to give credence to the said version, apart from inconsistent versions given in complaint, notice and evidence as to family purpose or business purpose except saying it is in discharge of hand loan, the accused issued the Ex.P1 cheque to draw presumptions under Sections 118 & 139 of the N.I. Act. In this background, the defence of accused right from Ex.P.6 reply notice and in cross examination of PW.1 is that, she obtained hand loan of Rs.10,000/- from the complainant on 06-01-2005 for business purpose and later, discharged the same with interest and in course of the payment, disputes arose regarding rate of interest claimed at 60% as against 24% p.a., that there were rice business transactions between them and in that connection, the complainant obtained blank cheques to arrange private finance through others and one of such blank cheques was misused by fabrication for wrongful gain and without consent of accused. Despite said reply notice and suggestions by accused to PW.1 during cross examination with the said version, there is no probable evidence placed by the complainant by filing any proof of lending such huge amount as hand loan, even to say there was acquaintance, as per PW.1, for last two years they both had been doing rice business. In the cross examination of PW.1, he categorically deposed that there is no other record for so-called lending of hand loan of Rs.1,25,000/- on 06.01.2005 and he filed already two suits based on promissory notes against others. The trial Court held therefrom that it is difficult to believe such huge amount of lending as hand loan without any document of source or to evidence said lending.

13. From the respective versions, coming to other probabilities, it is admitted by PW.1 that as unable to get over from appearance to a naked eye on a look at the Ex.P1 cheque, the cheque was filled with different writings of one pen for signature, admittedly of accused, another persons writing of the amount in words and figures with other pen and with overwriting even without initial of drawer for numeric 1 in of Rs.1,25,000/- and , after numeric 1 and no , after 25 and before 000; another persons writing of the name of payee and account number and another pen writing for date of cheque with other pen. When it was suggested that blank cheques obtained from accused as per practice of complainant and accused never borrowed from him such huge amount and one of the blank cheques was misused by fabrication for wrongful gain and without consent of accused and by material alteration. The complainant voluntarily deposed that the accused and her husband came to him and her husband filled all the contents therein and accused signed and they issued the duly filled cheque. Same is also belied from PW.1s cross-examination that more than three pens were used with more than three persons writings. From the above, it appears that the version of PW.1 is also untrue. To probablise the defence version and to say there is material alteration, had it been the version of PW.1, authorising to fill under Section 20 of the N.I. Act, the accused might not have the defence of material alteration, but for all the above, trial Court had rightly arrived at the conclusion and thus for this Court with reference to the settled propositions in the factual matrix there is nothing to interfere with the trial Courts acquittal judgment, but for dismissal of the appeal by confirming it. Accordingly the point 1 is answered.

14. POINT.2: In the result, the Criminal Appeal is, therefore, dismissed confirming the order of acquittal recorded by the lower Court in its judgment supported by reasons in its not finding the accused guilty for the offence under Section 138 N.I. Act. Miscellaneous Petitions, if any, pending in this appeal shall stand closed. _________________________________ Dr. JUSTICE B. SIVA SANKARA RAO Date:04-06-2014