ORDER : The present petitioner as the accused was tried by the Court of the XX Additional Chief Metropolitan Magistrate : at Bangalore City, (hereinafter for brevity referred to as “the Trial Court”), in Criminal Case No.30677/2005, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as “the N.I. Act”) and was convicted for the said offence by its judgment of conviction and order on sentence dated 04-06-2009. Aggrieved by the same, the accused preferred a Criminal Appeal, in the Court of the Presiding Officer, Fast Track Court-II, Bangalore, (hereinafter for brevity referred to as “the Sessions Judge’s Court”) in Criminal Appeal No.498/2009. The appeal was contested by the respondent who was the complainant in the Trial Court. The Sessions Judge’s Court in its judgment and order dated 08-03-2012, dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court dated 04-06-2009 in C.C.No.30677/2005. Aggrieved by the impugned judgments of conviction and order on sentence passed by both the Courts, the accused has preferred this revision petition. 2. The summary of the case of the complainant in the Trial Court was that, the complainant and the accused are known to each other since about 20 to 25 years. They are relatives by blood. During the month of August-2004, the accused borrowed hand loan of a sum of Rs.95,000/- from the complainant, to meet his family commitments, and had agreed to repay the said loan amount within four to five months, together with interest thereupon at the rate of Rs.2% per month. In that regard, the accused had issued postdated cheque bearing No.793847 dated 15-01-2005, for a sum of Rs.95,000/-, drawn on Syndicate Bank, Puttanachetty Road, Bangalore, in the month of January-2005. As advised by the accused, the complainant presented the said cheque for its encashment, however, the same came to be returned with the banker’s endorsement “Funds insufficient”. Thereafter, the complainant got issued a legal notice dated 28-06-2005 to the accused, both under the Registered Post Acknowledgment Due (RPAD) and Under Certificate of Posting (UCP). Upon receipt of the legal notice, the accused sent a reply through his counsel, denying the liability of the cheque amount. Thereafter, the complainant got issued a legal notice dated 28-06-2005 to the accused, both under the Registered Post Acknowledgment Due (RPAD) and Under Certificate of Posting (UCP). Upon receipt of the legal notice, the accused sent a reply through his counsel, denying the liability of the cheque amount. Since the accused did not pay the cheque amount, the complainant was constrained to file a criminal case against him in C.C.No.30677/2005, in the Trial Court, for the offence punishable under Section 138 of the N.I. Act. 3. The accused appeared in the Trial Court and contested the matter through his counsel. He pleaded not guilty and claimed to be tried, as such, the Trial Court proceeded to record the evidence. To prove his case, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-10 and closed his side. The accused got himself examined as DW-1 and got marked documents from Exs.D-1 to D-7, in his support. 4. The Trial Court, after recording the evidence led before it and hearing both side, by its impugned judgment of conviction and order on sentence dated 04-06-2009 convicted the accused for the offence punishable under Section 138 of the N.I. Act and ordered him to pay a fine of Rs.1,10,000/- and in case of default of payment of the fine amount, he was ordered to undergo Simple Imprisonment for a period of six months. As observed above, Challenging the impugned judgments of conviction and order on sentence passed by the Trial Court as well the Sessions Judges Court, the accused has preferred this revision petition. 5. Learned counsel for the revision petitioner (accused) and learned Amicus Curiae for the respondent/ complainant are appearing physically in the Court. 6. The Trial Court and Sessions Judge’s Court’s records were called for and the same are placed before this Court. 7. In view of the fact that the learned counsel for the respondent/complainant failed to appear before this Court on several dates of hearing, this Court by its reasoned order dated 13-07-2022, appointed learned counsel - Smt. Archana K.M. as the Amicus Curiae for the respondent (complainant). 8. Heard the learned counsel for the petitioner/ accused and learned Amicus Curiae for the respondent/ complainant. Perused the materials placed before this Court including the impugned judgments and the Trial Court and Sessions Judge’s Court’s records. 9. 8. Heard the learned counsel for the petitioner/ accused and learned Amicus Curiae for the respondent/ complainant. Perused the materials placed before this Court including the impugned judgments and the Trial Court and Sessions Judge’s Court’s records. 9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court. 10. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is: Whether the judgments under revision are illegal, perverse, and erroneous, warranting interference at the hands of this Court? 11. Learned counsel for the petitioner (accused) in his argument submitted that, the alleged loan had never been in existence. The cheque which was issued only for a sum of Rs.5,000/- was altered by the complainant as Rs.95,000/-. He also submitted that the complainant had no capacity to lend such a huge money to the accused. Further, the complainant being a Government Servant, had not obtained any prior permission to lend the alleged loan amount. With this, he submitted that the Trial Court as well the Sessions Judge's Court did not appreciate these facts in their proper perspective, which had led them to pass the impugned judgments, which are erroneous. In his support, he also relied upon a judgment of a Coordinate Bench of this Court in the case of B.P. Venkatesulu Vs. K.P. Mani Nayar reported in 2001 CRI.L.J. 745. 12. Learned Amicus Curiae for the respondent/ complainant in her argument submitted that, the accused has failed to prove the alleged alteration in the cheque. Except his oral self-serving statement, there is nothing on record to show that, there was any material alteration in the cheque. She further submitted that the application filed by the accused in the Trial Court seeking reference of the cheque for its expert's opinion regarding the alteration in it came to be rejected, however, his appeal upon the said impugned order also came to be rejected. Thus, the accused could not establish the alleged material alteration in the cheque. She also submitted that, the dishonour of the cheque was not for the alleged material alteration. She further submitted that, the complainant being a Police Constable in service, had sufficient means to give the loan, since he had agricultural income of his father and his wife was also doing tailoring job. She also submitted that, the dishonour of the cheque was not for the alleged material alteration. She further submitted that, the complainant being a Police Constable in service, had sufficient means to give the loan, since he had agricultural income of his father and his wife was also doing tailoring job. With this, she submitted that the impugned judgments do not warrant any interference at the hands of this Court. 13. The complainant, who got himself examined as PW-1, has reiterated the contentions taken up by him in his complaint. In support of his contention, he got marked the complaint filed by him under Section 200 of the Code of Criminal Procedure, 1973, as Ex.P-1; the dishonoured cheque at Ex.P-2, Banker's endorsement at Ex.P-3; copy of the legal notice at Ex.P-4; the Certificate of Posting at Ex.P-5; the postal receipts at Exs.P-6 to P-8; postal acknowledgement card at Ex.P-9 and reply by the accused to his notice, at Ex.P-10. 14. The accused also got himself examined as DW-1, who in his evidence, has taken a contention that the alleged loan in question has never been in existence. It was his specific defence that the loan of Rs.40,000/- was availed by him from the complainant in October-2003, agreeing to repay the same along with interest at the rate of Rs.18% per annum within a period of three months. However, even after three months, he could not repay the said loan, as such, the complainant demanded for higher rate of interest at Rs.24%. It is towards the dischargal of the said loan amount, he was paying instalments every month through cheques. Thus, between 04-02-2004 and 04-06-2005, he had issued fourteen (14) cheques to the complainant of various amounts from Rs.2000/- to Rs.10,000/-. The subject matter cheque was one among them issued on 15-01-2005, for a sum of Rs.5,000/-, however, the complainant has altered the amount mentioned in the figure column as Rs.95,000/- in the said cheque and written the amount in words by himself as 'Ninty Five Thousands Only' and presented the same. The accused has also taken a contention that, the complainant had no financial capacity to lend such a huge amount to him. The said defence was also suggested to PW-1 in his cross-examination. The accused has also taken a contention that, the complainant had no financial capacity to lend such a huge amount to him. The said defence was also suggested to PW-1 in his cross-examination. However, PW-1 in his cross-examination has denied those suggestions and also in the cross-examination of DW-1, the denial suggestions regarding the defence taken up by the accused were made to the witness. DW-1, to show that he had repaid the alleged loan of Rs.40,000/- through instalments and that only a balance amount of Rs.3,600/- therein was outstanding, has produced his two Bank Pass Books at Exs.D-1 and D-2. 15. From the evidence of the parties and the arguments addressed by the learned counsels from both side, the undisputed fact remains that, the accused and complainant are working in the same Department as Police Head Constable and Police Constable, respectively and that they are also cousin brothers, as such, known to each other. It is not in dispute that the cheque in question which is at Ex.P-2 was drawn by the accused in favour of the complainant. However, according to the accused, the said cheque was materially altered in its figure's column by the complainant by altering the amount of the cheque from Rs.5,000/- to Rs.95,000/-. 16. It is the contention of the accused that, while he was in a hurry to go to his office, the complainant collected the said cheque, as such, he could only write the amount in figure in the figure's column, leaving the amount's column in words blank. Misusing the same, the complainant got the said cheque written as Rs.95,000/- by inserting figure ‘9’ in the figure's column and filling up the amount of the cheque in words column by himself. The said contention taken by the accused has remained as statement made by him, without any corroboration. However, his statement has been subsequently denied by the complainant in his crossexamination. Admittedly, in the Trial Court, the accused had made an application, seeking reference of the said cheque for its expert's opinion regarding the alleged material alteration in it. However, the said application came to be rejected, and an appeal said to have been filed by the accused, challenging the said order of rejection, also is said to have been disposed of reserving liberty to the accused to agitate said issue. However, the said application came to be rejected, and an appeal said to have been filed by the accused, challenging the said order of rejection, also is said to have been disposed of reserving liberty to the accused to agitate said issue. Hence, the accused, except his self-serving statement that the subject matter cheque has been materially altered, has not produced any other material to establish his contention about the alleged material alteration in the cheque. In addition to the above, admittedly, the said cheque, when presented for its realisation by the complainant, came to be returned with the Banker’s endorsement "Funds insufficient" in the account of the drawer (accused). Admittedly, the Banker has not returned the said cheque for the reason of alleged material alteration. Therefore, the contention of the accused that the said cheque was materially altered by the complainant, is not acceptable. Thus, the complainant could able to establish that the cheque at Ex.P-2 was given to him by the accused and the same came to be dishonoured as per Banker’s endorsement at Ex.P-3 for the reason of insufficiency of funds in the account of the accused(drawer). 17. Admittedly, after the return of the cheque at Ex.P-2, the complainant got issued a legal notice to the accused, demanding the payment of the cheque amount, as per the copy of the legal notice at Ex.P-4. The accused, after receipt of the said notice has sent his reply to the counsel for the complainant as per Ex.P-10. Even in the said reply also, the accused has taken the contention, denying the alleged loan transaction of a sum of Rs.95,000/- between the complainant and himself and contended that the said cheque was given towards the partial repayment of the alleged loan of Rs.40,000/- said to have been borrowed by him in the first week of October-2004. Still, the fact remains that, even after service of legal notice upon him, the accused did not pay the cheque amount to the complainant. Thus, a legal presumption about the existence of a legally enforceable debt, forms in favour of the complainant under Section 139 of the N.I. Act, however, the said presumption is rebuttable. 18. In order to rebut the presumption formed in favour of the complainant, the defence taken by the accused was as mentioned above. Thus, a legal presumption about the existence of a legally enforceable debt, forms in favour of the complainant under Section 139 of the N.I. Act, however, the said presumption is rebuttable. 18. In order to rebut the presumption formed in favour of the complainant, the defence taken by the accused was as mentioned above. The said defence of denial of the loan transaction and the issuance of the cheque towards partial repayment of the alleged previous loan of Rs.40,000/- said to have been taken by him in October- 2004 was at the earliest point of time stated by the accused in his reply to the legal notice, at Ex.P-10 and thereafter in the cross-examination of PW-1, a suggestion was made to the witness and lastly in his evidence as DW-1. In that regard, the accused, as DW-1, got produced two Bank Pass Books of his Bank account at Exs.D-1 and D-2, however, by looking at the documents at Exs.D-1 and D-2, it cannot be inferred that there was no loan transaction as alleged by the accused. Merely because some cheques were said to have been given by the accused to the complainant in the period between 04-02-2004 to 04-06-2005, by that itself, it cannot be said that there existed no legally enforceable debt as a consideration of the cheque in question. 19. The other defence taken up by the accused regarding material alteration in the cheque also could not be established by him. However, the accused has taken the other contention of financial incapacity of the complainant to lend the alleged loan amount and the complainant not obtaining any prior permission by his employer to give such a loan, when admittedly, he was not a money lender. The accused, in the form of defence, has taken a contention that, the complainant had no financial capacity to lend him such a huge amount of Rs.95,000/-. In that regard, in the cross-examination of PW-1, a specific suggestion was made to the witness, however, the witness has denied the same. In addition to the same, it was brought in the cross-examination of PW-1, at the relevant point of time that, when the alleged loan transaction was said to have taken place, the complainant, as Police Constable in service was drawing a monthly salary of a sum of Rs.8,000/- to Rs.8,500/-. He has wife and two children as dependents. In addition to the same, it was brought in the cross-examination of PW-1, at the relevant point of time that, when the alleged loan transaction was said to have taken place, the complainant, as Police Constable in service was drawing a monthly salary of a sum of Rs.8,000/- to Rs.8,500/-. He has wife and two children as dependents. Eliciting this statement, when the accused suggested to PW-1 in the very same cross-examination that, the complainant had no financial capacity to lend so much of money, the witness stated that, there was a rental income in his father’s property and that his wife was doing tailoring work. Admittedly, to show the same, the complainant has not produced any document. The accused specifically denied that there was any rental income in the property of the complainant’s father and that the complainant’s wife was doing tailoring work. Therefore, when accused has taken a specific contention, suspecting the financial capacity of the complainant to lend such a huge amount of money to him and where the complainant comes up with a plea about his alleged financial capacity, then, it is for the complainant to establish the same. In the instant case, except stating that he had other income apart from the salary, the complainant has not produced any other materials to substantiate the same. Admittedly, the complainant was a Police Constable in service, drawing a monthly salary of a sum of Rs.8,000/- to Rs.8,500/-, at the relevant point of time, in which he had to maintain his wife and two children. In such a circumstance, he, maintaining a cash of a sum of Rs.95,000/- at his home, is highly unbelievable. PW-1 has stated that he had got the said amount in his house. Being a Government Servant, drawing a salary of around Rs.8,000/- per month, after incurring the expenses towards family necessities, retaining hard cash of a sum of Rs.95,000/- at his house, is very difficult to believe. Therefore, the accused was successful in raising a doubt in the alleged existence of a legally enforceable debt by showing that the complainant could not able to convince about his financial capacity to lend such a huge amount to him. 20. Therefore, the accused was successful in raising a doubt in the alleged existence of a legally enforceable debt by showing that the complainant could not able to convince about his financial capacity to lend such a huge amount to him. 20. In addition to the above, it was also the contention of the accused that, the complainant being a public servant, working in the Police Department, had not obtained the previous sanction by his employer or the superior to lend such a huge amount to the accused. Undisputedly, the complainant has not obtained any such permission, though he was working in the Police Department, as a Police Constable. Even though the accused is also working in the very same Police Department, however, the contention of the accused is the denial of the alleged loan transaction. Therefore, the accused obtaining any previous permission by his superior to avail the loan from his colleague, would not arise. On the contrary, since it is the specific contention of the complainant that, he had lent a huge amount of Rs.95,000/-to the accused, that too, in return of the said amount, on the interest at the rate of Rs.2% per month, which comes to Rs.24% per annum, the complainant has shown that, he was lending money for gain. Thus, his case becomes further doubtful about he lending money to the accused, since admittedly, he has not obtained any previous sanction from his superior/employer. 21. Lastly, the learned counsel for the petitioner (accused) canvassed a point that, mere collection of the disputed cheque by the complainant only towards the alleged principal amount but not inclusive of the interest payable, also creates a doubt in the case of the complainant. In his support, he relied upon a reported judgment of a Co-ordinate Bench of this Court in the case of B.P. Venkatesulu's case (supra), wherein, in a similar circumstance, for the offence under Section 138 of the N.I. Act and about the presumption under Section 139 of the N.I. Act, the Court after observing that, the cheque amount since does not include the amount of interest on the loan payable for a particular period, though the rate of interest was agreed, results in a vital defect in the complainant’s case. With the observation that the issuance of cheque for the actual loan amount and not including the amount of interest on loan payable is a strong intrinsic circumstance of a suspicious character, the Court held that the acquittal of the accused was proper. 22. In the instant case also, according to the complainant, though the cheque given was a post-dated cheque, but the period of repayment was alleged to have been agreed at the time of availment of the loan. It is also not the case of the complainant that, the accused had paid or had agreed to pay the interest separately. Therefore, when the cheque in question was said to have been taken in advance, at the time of giving the loan itself, the interest part in it was not included. According to the observation made in B.P. Venkatesulu's case (supra), it is a strong intrinsic circumstance of suspicious character, however, in the instant case irrespective of the said cheque amount not being inclusive of the alleged accrued interest, still, the complainant's failure to show that he had the financial capacity to lend the alleged loan amount and the complainant, being a public servant shown to have lent a huge sum of money in return for interest as a gain, without obtaining prior permission from his superior/ employer creates a serious doubt in the case of the complainant. The same is sufficient to hold that, the presumption formed in favour of the complainant under Section 139 of the N.I. Act, has successfully stood rebutted. In such an event, the burden of proving the alleged existence of legally enforceable debt would be upon the complainant, which burden the complainant has not discharged. This aspect, both the Trial Court and the Session’s Judge’s Court, have not considered the same. However, in a mechanical manner, after noticing the dishonoured cheque, Banker’s endorsement, legal notice, and reply to it, both the Courts have hastily jumped to a conclusion and held the accused guilty of the alleged offence punishable under Section 138 of the N.I. Act. Since the said finding now proves to be an erroneous and a perverse one, the same warrants interference at the hands of this Court. Since the said finding now proves to be an erroneous and a perverse one, the same warrants interference at the hands of this Court. Accordingly, I proceed to pass the following: ORDER : [i] The Criminal Revision Petition stands allowed; [ii] The impugned judgment of conviction and order on sentence passed by the XX Additional Chief Metropolitan Magistrate: at Bangalore City, dated 04-06-2009 in Criminal Case No. 30677/2005, holding the petitioner herein (accused) guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and the impugned judgment passed by the Presiding Officer, Fast Track Court-II, Bangalore, dated 08-03-2012, in Criminal Appeal No.498/2009, confirming the judgment of the Trial Court, are hereby set aside; [iii] The petitioner (accused) – Sri.H.S. Venugopala Reddy, Son of K.P. Srinivasa Reddy, Aged about 47 years, Residing at Hulimangala Village, Hulimangala Post, Jigani Hobli, Anekal Taluk, Bangalore District, is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The Court, while acknowledging the services rendered by Smt. Archana K.M., the learned Amicus Curiae for the respondent (complainant), recommends honorarium of a sum of not less than Rs.4,000/- to her, payable by the Registry. Registry to transmit a copy of this order to both the Trial Court and also the Sessions Judge’s Court along with their respective records, immediately.