The burden of proof, presumption under Section 139 of the Act, and material alteration of the cheque were central to the judgment.

The appellant has challenged the order acquitting the respondent for the charge under Section 138 of the Negotiable Instruments Act (hereinafter called as ‘the Act’ for short) on a trial held by the Addl. Chief Metropolitan Magistrate, Bangalore.

2. The facts relevant for the purpose of this appeal are as under:

The appellant herein submitted a complaint before the Trial Court under Section 200 Cr.P.C. against the respondent the accused before the Trial Court and it is alleged that they were known to each other and for domestic requirements, the respondent (the accused) made a request to the appellant (the complainant) in the month of September 2004 to give a hand loan of Rs.6,00,000/-. The respondent as security for the said loan issued a post dated cheque for a sum of Rs.6,00,000/- dated 13-04-2004 drawn on Sri. Anjaneya Co-operative Bank Limited and thereafter, assured the complainant to clear the dues within the stipulated period, failing which, the cheque will be honoured on presentation on the due date. The respondent did not keep up the promise and with the consent of the respondent, the appellant submitted the cheque for encashment and it returned with an endorsement of insufficient funds. The appellant issued a notice dated 21-10-2004 and instead of complying with the demand made in the notice, the accused is said to have given a false reply. In these circumstances, the appellant approached the Trial Court with a complaint on these facts.

During the trial, the appellant was examined as PW.1 and his wife as PW.2 and got marked the documents Exs.P.1 to P.11. The statement of the accused was recorded under Section 313 Cr.P.C. The accused examined herself as DW.1 and two witnesses DWs.2 and 3 and in the evidence, got marked the documents Exs.D.1 to D.14. The Trial Court, after hearing the counsel for the parties and on appreciation of the material on record, acquitted the accused for the charge aforesaid and aggrieved by the acquittal, the present appeal has been filed.

3. I have heard the learned counsel for both the parties. The point that arise for my consideration is:

“Whether the appellant has made out any grounds to warrant interference in the order of acquittal of the respondent for the charge under Section 138 of the Act?”

4. The learned counsel for the appellant would contend that when once the signature on the cheque is admitted by the respondent, a presumption arises under Section 139 of the Act and there is a heavy burden upon the respondent/accused to rebut the said presumption and further, that the respondent has not led any such evidence to rebut the presumption. It is also his contention that there is no material alteration of the cheque Ex.P.1 and in the circumstance, the Trial Court committed an error in granting an order of acquittal. So also, it is his contention that the Trial Court has not taken into consideration the other aspects except with reference to the alteration of the cheque and therefore, he contends that this is a case wherein the matter has to be remitted to the Trial Court with a direction to consider all the points and then to pass appropriate orders. Per contra, the learned counsel for the respondent has supported the judgment and order of the Court below.

5. The cheque said to have been issued by the respondent has been admitted in evidence as Ex.P.2. It bears the date as 13-04-2004. The number 4 appears to have been altered. It could be seen through the naked eyes that there is an alteration of the year of the cheque. It is the submission of the counsel, that there is no alteration at all. PW.1 the appellant in the cross examination states that he does not know as to whether there is any alteration in the cheque. Further, he states that at the place where the date of the cheque is corrected, there is no signature of the accused. This version in the cross examination of PW.1 clearly indicates his knowledge about the alteration of the year in the cheque.

6. The learned