IMPORTANT POINT
Material alteration in cheque is fatal to case of complainant.

B. Siva Sankara Rao, J.—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