This is Complainant's appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act. 1881 (Act, for short) by Order dated 28-4-2005 of the learned J.M.F.C., Mapusa.

2. The Complainant is a Finance Company and the accused is an architect by profession. The complaint was filed with the allegation that on 7-8-1997 the accused was given a loan of Rs.1,50,000/- repayable with interest at the rate of 24% per year on or before 7-8-1999 and in repayment of the said loan the accused had issued a cheque dated 25-4-2001 for Rs. 4,17,274/- and the said cheque was presented on 8-9-2001 for encashment but was returned dishonoured by intimation dated 109-2001 from Centurion Bank Ltd., Panaji, whereupon the Complainant sent the statutory notice dated 17-9-2001 which the accused received on 19-9-2001 but did not comply with the same. The complaint was filed on 12-10-2001.

3. The case of the accused, as can be seen from his statement recorded under Section 313 of the Code of Criminal Procedure, 1973, is that the said cheque was issued by him in blank as collateral security. It was also the plea of the accused that the accused does not owe to the Complainant the amount represented by the said cheque.

4. The Complainant examined its Manager in support of the case. The accused did not step into the witness box. The learned trial Court came to the conclusion that the subject cheque was issued by the accused as a collateral security and was not issued in discharge of a legally enforceable debt and therefore the accused could not be convicted under Section 138 of the Act.

5. The learned Senior Counsel on behalf of the Complainant submits that the accused did not contest the statement of account of his loan produced on behalf of the Complainant. The learned Senior Counsel further submits that the accused had failed to step into the witness box and had taken inconsistent defence and as such was unable to rebut the presumption available to the Complainant in terms of Section 139 of the Act. The learned Senior Counsel contends that although the cheque given to the Complainant was dated 25-4-2001, the same was filled in within an amount of Rs.4,17,274/- which was certainly due to the Complainant, as per the said statement of account, prior to the said cheque was presented for payment. The learned Senior Counsel submits that even if the cheque was given as security the Complainant was entitled to complete it and present it for payment as the payment towards the loan was not forthcoming from the accused.

6. On the other hand, the learned Counsel on behalf of the accused, submits that the subject cheque for Rs.4,17,274/- is for an amount which is greater than the amount which was due to the Complainant on 25-4-2001 and therefore the accused could not be prosecuted for bouncing of the said cheque and in the context the learned Counsel has placed reliance on the decision of Madras High Court in the case of Angu Parameshwari Textiles Vs. Sri Rajam and Co. (Acq. D.C.C. 801) wherein the Madras High Court has stated that if the cheque is for an amount which is more than the amount of the debt due, Section 138 cannot be attracted. That was a case where the cheque given was for Rs.4,68,581/- and subsequently the accused had paid an amount of Rs.2,00,000/- by demand draft. The Complainant did not return the said cheque of Rs.4,68,581/- and obtained a cheque for the balance amount of Rs.2,68,581/- but presented the said original cheque which was returned unpaid, and in the aforesaid circumstances the High Court stated that if the cheque was for an amount more than the amount of the debt due, Section 138 could not be attracted. The learned Counsel further submits that filling of the cheque for an amount which was not due to the Complainant, as on the date of the cheque, amounts to an alteration of the cheque and that could not be done without the consent of the accused who had issue the cheque and in this context the learned Cou