The presumption under Section 139 of the NI Act applies unless substantively rebutted, and any alteration in the cheque must be proven materially by the accused.

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

Heard Sri Akarsh Mittalkod, learned counsel for revision petitioner and Sri N.P.Vivekmehta, learned counsel for respondent.

2. Revision petitioner is the accused who suffered an order of conviction in C.C.No.150/2010 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I. Act’, for short) and ordered to pay fine of Rs.1,15,000/- of which sum of Rs.1,10,000/- is ordered to be paid as compensation and balance sum of Rs.5,000/- towards expenses of the State, which was confirmed in Criminal Appeal No.17/2014.

3. Facts in the nutshell which are utmost necessary for the disposal of the revision petition are as under:

3.1 A complaint came to be lodged alleging the commission of the offence under Section 138 of the N.I.

Act by contending that petitioner obtained hand loan in a sum of Rs.1,10,000/- for his legal necessity with a promise to repay the same within fifteen days and towards repayment, he issued cheque bearing No.528278 dated 18.09.2009 drawn on State Bank of Hyderabad, Gangavathi Branch, which on presentation came to be dishonoured.

3.2 Legal notice came to be issued which was not complied by the accused and thereafter trial was held for the offence under Section 138 of the N.I. Act.

3.3 Complainant got examined himself as PW.1 and one Girish Kulkarni as a witness to establish that there was a loan transaction as PW.2. Complainant also got examined a witness from the Bank as PW3 in the light of the defence that has been taken by the accused that there is a material alteration in Ex.P1 by dishonoured cheque.

3.4 Detailed cross-examination of the complainant and his witnesses did not yield any positive material so as to rebut the presumption available to the complainant under Section 139 of the N.I. Act.

3.5 Thereafter, accused got examined himself as DW1 and deposed before the Court that he is working as Peon in Gangavathi Court and did not issue cheque for the purpose of repayment of the money, but it was issued in a sum of Rs.10,000/- which has been altered materially by altering the date as well as the amount in words and figures.

4. Learned Trial Magistrate considering the rival contentions of the parties did not accept the version of the accused and convicted the accused inter alia holding in paragraph 10 as under:

“10. On careful evaluation of the oral evidence of the complainant as well as the accused, it is not in dispute that the accused has issued the cheque to the complainant at Ex.P-1 by putting his signature. The issue before the court is the making of alteration by complainant with regard to writing of 1 lakh in words at Ex.P-1. Therefore when, once the accused admits his signature and writing of cheque, a duty is cost on the court to draw the presumption U/Sec. 139 of N.I.Act that the accused has issued the cheque at Ex.P-1 for the discharge of the legally enforceable debt. Now the onus is on the accused to rebut the presumption available U/Sec. 139 of N.I.Act and to rebut the same presumption, the accused is not suppose to lead evidence before the court beyond reasonable doubts. He can disprove the case of the complainant only by the producing the evidence which is on pre-ponderance of probabilities. The accused can rebut the presumption from the material produced by the complainant itself or by conducting effective cross examination of the complainant. In his reply notice at Ex.P-7 the accused took the contention that he has paid loan amount of Rs.10,000/-to the complainant in the Second week of August 2009. And despite of his oral request the complainant has failed to return his cheque. That apart in the cross examination of Pw-1 it is sug