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2012 DIGILAW 994 (KAR)

Lalit Babulal Jain v. Narendra Kumar

2012-12-12

A.S.PACHHAPURE

body2012
JUDGMENT : A.S. Pachhapure, J. The appellant has challenged the judgment and order acquitting the respondent for the charge u/s 138 of the Negotiable Instruments Act (hereinafter referred to as 'NI Act' for short) on a trial held by Addl. Chief Metropolitan Magistrate, Bangalore City. The facts relevant for the purpose of this appeal are as under: The appellant who is the complainant before the Trial Court is said to have advanced a sum of Rs. 1,00,000/- to the respondent which was to be repaid with interest. The respondent who is accused before the Trial Court is said to have issued a cheque dated 10.12.2006 for Rs. 50,000/- and another cheque for a sum of Rs. 55,000/-. The said cheque was presented for encashment in the bank and it returned with an endorsements "insufficient funds" and "stop payment". The appellant issued a notice and as the respondent did not comply with the demand, a complaint came to be filed before the Trial Court against the respondent to initiate proceedings u/s 138 of the NI Act. 2. In a trial, the appellant was examined as P.W. 1 and document Exs. P1 to P12 were marked. The statement of respondent was recorded u/s 313, Cr. P. C. The respondent is examined as DW 1 and document Exs. D1 and D2 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, acquitted the respondent for the said charge. Aggrieved by the judgment and order of acquittal, the present appeal has been filed. 3. I have heard learned Counsel for both the parties. 4. It is the submission of learned Counsel for the appellant that the cheque has been signed by the respondent and therefore, presumption arise u/s 139 of NI Act and as the said presumption is not rebutted, the Trial Court ought to have convicted the respondent for the said charge. 5. On the other hand, learned Counsel for the respondent contends that there is material alteration in the cheque which is produced by the appellant in the bank and therefore, on this count itself, presumption is rebutted and hence, he contends that the Trial Court was justified in granting an order of acquittal. 6. The cheque has been produced at Ex. P3. This cheque is for a sum of Rs. 50,000/-. 6. The cheque has been produced at Ex. P3. This cheque is for a sum of Rs. 50,000/-. There is signature of the respondent as proprietor of 'Mukesh Matching Point' and it reveals that earlier the cheque was dated 10.12.2005 and the number 5' has been corrected by altering it as 6'. There is a signature below the correction. As could be seen from the signature below the correction and the signature on the cheque of proprietor of the concern, there is material difference which can be noticed with bare eyes. This dissimilarities in the signature is not disputed in this Court well. This is a material alteration of the cheque, and on the basis of this material alteration, the Trial Court has held that the presumption cannot be raised u/s 139 of NI Act or even it is raised, it stands rebutted. Considering the material alteration in the cheque, I am of the opinion that the appellant has not made out any grounds to warrant interference. In the result, the appeal fails and is dismissed. The execution of bond by the respondent in pursuance of the order dated 30.06.2011 is cancelled.