JUDGMENT : This appeal is directed against the judgment dated 30.12.2009 in C.C.No.1660/2005 whereby the I Addl. Civil Judge (Jr.Dn.), and JMFC, Hubli has dismissed the complaint filed by the appellant/complainant and has acquitted the respondent/accused of the offence punishable under section 138 of the Negotiable Instruments Act (hereafter referred to as ‘N.I. Act’ for short). 2. (i) The complainant presented a private complaint under Section 200 Cr.P.C. read with section 138 of N.I. Act, 1988 alleging that the accused approached the complainant for purchase of garments on behalf of her brothers viz., Raju Miskin and Parashuram Miskin, who were doing garment business under the name and style of ‘Nitin Garments’. In repayment of the said purchase amount, she issued two cheques bearing Nos.045159 and 045160 for a sum of Rs.50,000/- each, both dated22.04.2003 drawn on S.S.K. Co-operative Bank Ltd., and the said cheques when presented were dishonoured for ‘insufficient funds’. The complainant caused a statutory notice to the accused. The same was received by her, but failed to comply with the demand. Hence, the complainant sought action against the accused under section 138 of N.I. Act. (ii) The complainant examined himself as PW-1 and produced in evidence the original cheques Exs-P1 and P2, memo issued by the bank Ex-P3, copy of the legal notice Ex-P4, postal acknowledgement Ex-P5. In order to substantiate the transaction and the dues, the complainant produced the bill book Ex-P6 and the relevant entry therein at Ex-P6(a) and Ex-P6(b). Ex-P7 cash book and Ex- P8 ledger extract and also income tax returns Exs-P9-P13, Ex-P14 Debtors list. Further, he examined two other witnesses as PW-2 and PW-3 namely, the bank officials. (iii) In rebuttal, the accused examined herself as DW-1 and also examined her brother Raju Narayana Miskinas DW-2. The accused relied on the Xerox copy of registration certificate of Establishment Ex-D1 and the copy of the notice issued to the complainant Ex-D2 and the postal acknowledgement Ex-D3. The plea put forth by the accused was that she had purchased two second hand sewing machines from her brother Raju Miskin and in repayment thereof, she had issued two blank cheques to him and the complainant forcibly took the said two cheques from the drawer of her brother and made use of the same to lay a false claim against the accused. (iv) On considering the above material, the trial court was of the view that the complainant failed to establish a legally enforceable debt. Further, the trial court came to the conclusion that by examining the brother of the respondent/accused, the accused has probabilised the defence set up by her and consequently, acquitted the accused of the alleged charge under section 138 of N.I. Act. (v) Feeling aggrieved by the impugned judgment of acquittal, the complainant has preferred this appeal. 3. I have heard the learned counsel for the appellant/complainant Sri. Dinesh M. Kulkarni and the learned counsel for the accused/respondent Sri. Vittal S. Teli and have carefully examined the records. 4. (i) The learned counsel for the appellant/complainant has drawn my attention to the elaborate evidence adduced by the complainant and would submit that the complainant has not only established the transaction, but has produced cogent material to show that the accused purchased the garments from the complainant. The case of the complainant is that the accused made the purchases on behalf of her brothers. The said averment in fact is immaterial in deciding the issue under Section 138 of N.I. Act. It is immaterial as to on whose behalf, the accused incurred the debt. As long as it is proved that there was valid consideration for issuanceof the cheque, it suffices for the purpose of maintaining the complaint under Section 138 of N.I. Act. Further, the complainant having established that the said cheque was dishonoured for insufficient funds, all the ingredients of the offence are established by the complainant. Therefore, the trial court was not justified in acquitting the accused on the plea set up by the accused. (ii) The learned counsel has pointed out that the defence set up by the respondent/accused is inconsistent and does not stand to reason. Even if the said defence is accepted, it only goes to show that the said cheque was issued by the accused in discharge of the amount due by her towards the transaction in question. Therefore, the findings recorded by the trial court being contrary to the evidence on record are liable to be set aside. 5. The learned counsel appearing for the respondent/accused however submits that the case of the complainant is that the transaction was entered into by the accused on behalf of her brother. Therefore, the findings recorded by the trial court being contrary to the evidence on record are liable to be set aside. 5. The learned counsel appearing for the respondent/accused however submits that the case of the complainant is that the transaction was entered into by the accused on behalf of her brother. The documents producedbefore the Court run contrary to the case pleaded by the complainant. The complainant has failed to prove the legally enforceable debt. The trial court was therefore justified in disbelieving the case of the complainant. Further, the learned counsel would point out that even though the complainant has produced the income tax returns, the same does not refer to the alleged transaction. On the other hand, the evidence adduced by the accused indicate that the cheques in question were forcibly taken by the complainant and the same have been made use of to lay a false claim against the accused. 6. I have considered the submissions and have examined the oral and documentary evidence produced by the parties. 7. The respondent/accused does not dispute the fact that the cheques Exs-P1 and P2 contain her signatures. She also does not dispute that the said cheques relate to the account maintained by her in S.S.K.Cooperative Bank Limited. The only plea set up by the respondent/accused is that she had purchased two sewing machines from her brother and in repayment of the same, she had issued two cheques to her brother which have been forcibly taken by the complainant from the drawer of his brother and the same have been made use of to lay a false claim against her. 8. On considering the evidence, I find that the accused has failed to probablize the above defence. Firstly she did not cause any reply to the legal notice issued by the complainant at the earliest instance putting forth the above defence. It is only after the registration of the complaint, after service of summons, she appears to have sent a notice to the complainant along with her brother Raju Miskin and in the said notice, for the first time, she alleged the circumstances under which the said cheques were issued/drawn by her. It is relevant to note that the said notice Ex.D-1 is dated 03.03.2007. Ex-D2 is the acknowledgment for having served the said letter on thecomplainant. It is relevant to note that the said notice Ex.D-1 is dated 03.03.2007. Ex-D2 is the acknowledgment for having served the said letter on thecomplainant. In order to appreciate the truthfulness of her defence, it may be necessary to cull out the relevant portion of this notice/letter which reads as under: “I do not have any financial transaction or relationship whatsoever between Parasuram and Raju Miskin and the complainant as stated by him.” Further the accused has stated that; “she has not entered into any transaction with Parasuram and Raju Miskin and did not hand over any cheques to them.’ She has stated further that in order to work in the shop of Raju Miskin, she has purchased a second hand sewing machine and a zig-zag machine. After discussion in this regard, in order to pay the amount, she has subscribed her signature on the said cheques without writing the date and out of faith, she handed over the said cheques to Raju Miskin. But, after some time, the said shop was also closed. 9. If the said notice is believed, it only goes to show that the respondent/accused did not make any purchase from Raju Miskin. On the other hand, her case is that she had purchased one second hand sewing machine and in respect of the said transaction, she has signed the cheques and had handed them over to Raju, meaning thereby that, she intended Raju to hand over the said cheques to the person from whom she had purchased the sewing machine. But during the course of her evidence, she had come up with totally a different story stating that she was working in the shop of Raju Miskin, and at that time, she purchased an old sewing machine and embroidery machine from Raju and had given two blank cheques as security to Raju Miskin. She has further asserted that the said Raju Miskin colluded with the complainant as a result, the said cheques have been made use of by the complainant to foist a false case and therefore, she issued a notice to the complainant and RajuMiskin. This version is quite contrary to the version narrated in Ex-D2. 10. Be that as it may, her brother Raju Miskin is examined as DW-2. This witness has totally a different story to tell before the Court. This version is quite contrary to the version narrated in Ex-D2. 10. Be that as it may, her brother Raju Miskin is examined as DW-2. This witness has totally a different story to tell before the Court. According to him, respondent/accused had purchased an old sewing machine and a zig zag machine through him, but the rate of the said machine was not fixed and therefore, the respondent/accused handed over two blank cheques to him. According to DW-2, he did not sell any machines to the accused. If so, the question of accused handing over the said cheques blanks affixing her signature to her brother does not arise at all. It is also highly improbable and unbelievable that the accused would hand over blank cheques to her brother, when it is the case of her brother that even the price for the said machines were not fixed. This defence appears to have been propped up only to get over the claim made by the complainant. Even otherwise, as already noted, this defence has taken shape only afterthe issuance of the summons from the Court. There is absolutely no supporting material to show that the accused had in fact purchased any second hand machine either from her brother DW-2 or from any other person. Except the interested testimony of DW-2- her brother, there is no corroborating evidence to probabalise the defence set up by the accused. The trial court has failed to consider all these aspects and has blindly accepted the plea put forth by the accused. In my view, the evidence on record is not sufficient to hold that there the accused had purchased second hand sewing machine from DW-2 and in respect of the said transaction, she has issued cheques and the same were stolen or taken forcibly by the complainant as sought to be made by the accused. These findings, therefore in my view, being contrary to the evidence on record cannot be sustained. 11. On careful scrutiny of the evidence on record, I find that the complainant has clearly established that the accused had purchased garments from the complainant, asevidenced in the cash book Ex.P7 and the ledger extract Ex.P-8. Whether those garments were purchased by her for and on behalf of her brother is immaterial for the purpose of this case. 11. On careful scrutiny of the evidence on record, I find that the complainant has clearly established that the accused had purchased garments from the complainant, asevidenced in the cash book Ex.P7 and the ledger extract Ex.P-8. Whether those garments were purchased by her for and on behalf of her brother is immaterial for the purpose of this case. The fact remains that the cheques were drawn by her towards purchase of the value of the garments and the same has been issued to the complainant. Even if the contention taken up by the accused that the name of the drawee were not filled up by her is accepted, still the surrounding circumstances proved in evidence clearly indicate that the said cheques were issued to the complainant only in discharge of the debt due by her. In the said circumstances, even if the name of the drawee is filled by the complainant, he becomes holder in due course. Therefore, viewed from any angle, in my view, the complainant has satisfied the ingredients of section 138 of N.I. Act rendering the accused liable for conviction for the said offence. The trial court has failed to consider the above evidence in proper perspective. The findings recorded by the trial court are opposed to theprovisions of Section 138 of N.I. Act. The trial court has misread the evidence of DW-1 and DW-2. The finding recorded by the trial court that the accused has rebutted the presumption attached to the cheque does not find support in the evidence of DW-1 and DW-2. Therefore, the said findings cannot be sustained. 12. Accordingly, the findings recorded by the trial court are set aside. The accused is held guilty of the offence under section 138 of N.I. Act. Consequently, the appeal is allowed. The impugned judgment dated 30.12.2009 passed by I Additional Civil Judge (Jr.Dn.) & JMFC, Hubli in C.C. No.1660/2005 is set aside. The accused is convicted for the offence punishable under section 138 of N.I. Act and is sentenced to pay a fine of Rs.2,00,000/- (Rupees Two Lakh only). The said fine amount shall be deposited within six weeks from the date of this order. In default to pay or deposit the said fine, the accused shall undergo imprisonment for a period of one year. The said fine amount shall be deposited within six weeks from the date of this order. In default to pay or deposit the said fine, the accused shall undergo imprisonment for a period of one year. On deposit of the fine amount, a sum of Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand Only) shall be made over to the complainant by way of compensation and the remaining Rs.25,000/- (Rupees Twenty Five Thousand Only) shall be credited to the Government by way of fine. In default to pay the said amount, the accused shall undergo imprisonment for a period of one year.