S. Sardar Zackaria Hussain, J.— The appellant is the complainant and the appeal is filed against the Order of acquittal of the respondent/accused in C.C.No. 1867 of 1994 on the file of the VIIth Metropolitan Magistrate, George Town, Madras, as per Judgment dated 17.6.1996 for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘the Act’).

2. The private complaint was filed by the complainant stating that the complainant Amaravathi Chits and Investments is a partnership firm and the accused borrowed money from the complainant and in discharge of the same, he issued a cheque No.991836 dated 26.12.1993 drawn on Indian Overseas Bank, Triplicane, for a sum of Rs. 50,000. The accused requested the complainant to present the cheque by the end of February, 1994 and when the cheque was presented for collection on 1.3.1994, it was returned with endorsement “insufficient funds.” After return of the cheque, the complainant contacted the accused and asked him to pay the amount but he was evasive and, therefore, lawyer’s notice was issued on 7.3.1994, which was served on the accused on 10.3.1994. Since the amount was not paid, the complaint was filed on 8.4.2004, which was taken on file under Section 138 of the Act.

3. During enquiry, the complainant examined the Power of Attorney Padmanabhan as P. Ws. 1 and 2 other witnesses as P. Ws. 2 and 3 and marked Exs. P.1 to P.6. On the side of the accused, one Scientific Assistant of the Forensic Science Laboratory was examined as D. W. 1 and Exs. D. 1 to D.3 were marked. The trial Court, considering such evidence adduced on either side, recording finding that there have been material alterations in the cheque Ex. P.1 issued by the accused and the complainant has not proved the issuance of cheque by the accused in the complaint as well the cheque was issued for the discharge of any debt or liability to the complainant firm and, therefore, the complainant has not proved the offence under Section 138 of the Act, acquitted the accused under Section 255(1) of the Code of Criminal Procedure. The said Judgment is challenged by the complainant in this appeal.

4. Heard the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused.

5. Learned counsel for the appellant argued that the disputed cheque was given to the complainant in discharge of the amount due showing the name of the appellant as Amaravathi Chits and Investments and as such, the cheque was not given to one Arjun Amaravathi Chits Private Limited, as urged by the learned counsel for the accused. Learned counsel further submitted that there has been no insertion or material alteration by putting the number ‘1’ before ‘2’ in respect of the month. Learned counsel also contended that though it is claimed by the accused that such insertion or material alteration has been made in the cheque to make the cheque valid for the purpose of limitation, no reply has been sent by the accused for the lawyer’s notice caused despite the fact that it was served on the accused. The complainant is not running any chit company and he is not conducting any chit.

6. Learned counsel for the respondent/accused argued that the cheque was not issued to the complainant and it was actually issued only to one Arjun Amaravathi Chits and Investments in the year 1992 and repayment of the same was already over and no amount was due in the particular chit in Arjun Amaravathi Chit Account and the cheque issued to the said chits have been wrongly misused by the complainant by making material alteration in the date and in the body of the cheque. In this regard, learned counsel also submitted that the accused filed Criminal M.P.No. 2077 of 1995 to send the cheque Ex. A.1 (Cheque No.991836) to the Forensic Department for obtaining the expert’s opinion and the Scientific Assistant D. W. 1, also, in support of the case of the accused, has stated in the report Ex. D.3 that the person, who has written