ORDER : V Srishananda, J. Heard Sri.Chethan A. C., learned counsel for the revision petitioner. None present on behalf of the respondent. 2. The present revision petition is filed by the revision petitioner challenging the order of conviction and sentence passed in CC NO.17696/2013 dated 07.11.2017 on the file of XX Additional Chief Metropolitan Magistrate, Bengaluru which was confirmed in Criminal Appeal No.1693/2017 dated 31.05.2021 on the file of LXIX Additional City Civil and Sessions Judge, Bengaluru (CCH 70) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3. Brief facts of the case which are utmost necessary for disposal of the revision petition are as under: 3.1. Respondent launched a criminal prosecution against the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act by contending that accused approached the complainant for hand loan in a sum of Rs.15,00,000/- during January 2006 with an assurance to repay the same. 3.2. Towards repayment, accused passed on cheque bearing No.217882 dated 04.01.2006 drawn on Oriental Bank of Commerce, Sadashivnagar Branch, Bengalore. The said cheque on presentation came to be dishonored with an endorsement ‘funds insufficient’. 3.3. Thereafter, legal notice was issued by the complainant to the accused and same is served on the accused. There was no reply nor compliance to the callings of the legal notice. Therefore, complainant sought for action. 4. The learned Trial Magistrate after taking cognizance, summoned the accused and recorded the plea. Accused pleaded not guilty. Therefore, the trial was held. 5. In order to prove the case of the complainant, complainant got examined himself as P.W.1 and relied on twenty two documents which were exhibited and marked as Exs.P.1 to Ex.P.22 comprising of cheque as Ex.P.1, signature of the accused as Ex.P.1(a), bank endorsement as Ex.P.2, copy of the legal notice as Ex.P.3, postal receipt as Ex.P.4, postal acknowledgement as Ex.P.5, bank statement as Ex.P.6, complaint as Ex.P.7, pronote as Ex.P.8, signature of accused as Exs.P.8(a) and (b), bank statement as Ex.P.9, ledger extract as Ex.P.10, income tax returns as Exs.P.11 to 19, ledger extract as Ex.P.20, certified copy of Cri.Pet.No.2422/2012 and 60/2011 as Exs.P.21 and 22. 6. Detailed cross-examination of P.W.1, did not yield any positive materials so as to dislodge the presumption available to the complainant under Section 139 of the Negotiable Instruments Act. 7. 6. Detailed cross-examination of P.W.1, did not yield any positive materials so as to dislodge the presumption available to the complainant under Section 139 of the Negotiable Instruments Act. 7. The suggestions made to the complainant that there was an alteration in the date of the cheque wherein, the year of the cheque ‘2009’ has been altered into ‘2010’ is denied by P.W.1. No further proof there on was placed on record by the accused in respect of the alleged alteration of the date. 8. Thereafter, the learned Trial Magistrate recorded the accused statement as is contemplated under Section 313 of Cr.P.C. wherein, the accused has denied all the incriminatory circumstances. 9. To a specific question that was posed with regard to the liability of the accused, accused has simply denied. 10. Thereafter, accused got examined himself as D.W.1 and one witness on his behalf was examined as D.W.2. In the examination-in-chief of D.W.1, he has stated that in respect of some other transaction that he had with one Manoj Gera, he had issued a blank cheque which has been misused by the complainant. 11. It is also deposed by him that the contents of Ex.P.1 was filled up by Manoj Gera and he can identify the hand writing of Manoj Gera in the cheque. 12. It is also pertinent to note that in the examination-in-chief of D.W.1 itself, there was no contentions raised by D.W.1 that the date is altered by the complainant. 13. It is further deposed that Manoj Gera and complainant have colluded and filed a false case. In his cross-examination, he has answered that he has obtained sum of Rs.15,00,000/- as financial assistance through the cheque in the year 2006 from his finance broker namely Manoj Gera. 14. He admits that he has got the accounts in Corporation Bank, State Bank of Mysore, State Bank of India, Syndicate Bank and standard Chartered Bank. He also admits that he has an account in Bank of Baroda. He admits the signature in Ex.D.8 which is an on demand promissory note. 15. It is his further admission that he had obtained financial assistance in a sum of Rs.18,00,000/- from the complainant on another occasion. He admits that he is the proprietor of Jatti Auto Mobiles and there was another cheque bounce case filed by one Prassanna Kumar against him and he has been convicted in the said case. 16. 15. It is his further admission that he had obtained financial assistance in a sum of Rs.18,00,000/- from the complainant on another occasion. He admits that he is the proprietor of Jatti Auto Mobiles and there was another cheque bounce case filed by one Prassanna Kumar against him and he has been convicted in the said case. 16. On his behalf, one Manoj Gera is examined as D.W.2. He has deposed that he is not acquainted with the complainant nor the accused. 17. He has been treated as hostile witness and cross-examined by the accused. On his cross- examination, he denies the suggestions that he is working as a financial broker. He denies the hand writing in Ex.P.1 in respect of the name of the complainant and the amount mentioned therein. 18. He also denies the hand writing in Ex.P.8 and further denies that he has colluded with the complainant and filed a false case. 19. On conclusion of the recording of the evidence of both the sides, learned trial magistrate heard the parties and considered the rival contentions of the parties in detail including the alleged alteration in the date column of Ex.P.1 and disbelieved the defence taken by the accused and raised the presumption available to the complainant under Section 139 of the Negotiable Instruments Act and convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced the accused by imposing fine of Rs.18,10,000/- of which sum of Rs.18,00,000/- was ordered to be paid as compensation to the complainant and balance sum of Rs.10,000/- to the defraying expenses of the State. 20. Being aggrieved by the same, accused preferred an appeal before the First Appellate Court in Criminal Appeal No.1693/2017. 21. The learned Judge in the First Appellate Court after securing the records and hearing the arguments in detail, in the light of the appeal grounds, has considered the material on record and reappreciated the material evidence and dismissed the appeal filed by the accused. 22. Being further aggrieved by the same, the accused is before this Court, in this revision. 23. 22. Being further aggrieved by the same, the accused is before this Court, in this revision. 23. Reiterating the grounds urged in the revision petition, Sri.Chethan A. C., learned counsel for the revision petitioner vehemently contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act resulting in miscarriage of justice and sought for allowing the revision petition. 24. He also contended that the alteration in the date column is totally ignored by learned Trial Magistrate and learned Judge in the First Appellate Court and therefore, the order of conviction is improper. 25. He further argued that the income tax returns filed by the complainant would go to show that he has lent money to several persons and admittedly, not holding any money lending license and therefore, the amount that has been lent in favour of the accused by the complainant would not have been recovered by the complainant for want of money lending license and as such, there was no legally recoverable debt under Ex.P.1 which has been ignored by learned Trial Magistrate and learned Judge in the First Appellate Court while recording the order of conviction and sought for allowing the revision. 26. In this regard, he places reliance on the judgment of the Hon’ble Bombay High Court reported in 2010 Crl.L.J. 1217 in the case of Anil Baburao Kataria Vs. Purshottam Prabhakar the relevant portion of the said judgment in paragraph No.9 reads as under: “9. Here, I may refer to the provisions of the Bombay Money-Lenders Act, 1946. Section 5 of the said Act lays down that no money lender shall carry on business of money lending except in the area for which he has been granted a licence and except in accordance with the terms and conditions of such licence. It is not the case of present applicant- complainant that he has any money lending licence. Section 5 of the said Act lays down that no money lender shall carry on business of money lending except in the area for which he has been granted a licence and except in accordance with the terms and conditions of such licence. It is not the case of present applicant- complainant that he has any money lending licence. Section 10 of the Act lays down that no court shall pass a decree in favour of a money-lender in any suit to which said Act applies unless the court is satisfied that at the time when the loan or any part thereof, to which the suit relates was advanced, the money-lender held a valid licence, and if the court is satisfied that the money-lender did not hold a valid licence, it shall dismiss the suit. In other words, carrying on money lending business without licence debars a person from doing money lending and recovering the amount through court. As per explanation to Section 138 of the Negotiable Instruments Act "debt or other liability" means a legally enforceable debt or other liability. So, a loan advanced by a money lender who is doing business of money lending without licence is not a debt or other liability and provisions of Section 138 of the Act will not apply to such transaction. In the light of above, it cannot be said that in the present case, that the cheque issued by the Respondent in favour of the applicant was for the liability enforceable in law.” 27. He also placed on record the decision of the Hon’ble High Court of Andra Pradesh in the case of M/s. Krishnam Raju Finances, Hyderabad Vs. Abida Sultana and another reported in 2004 Crl. L. J. 4019 on the same principal wherein, in paragraph No.17 it has been held as under: “17. I am in complete agreement with the submissions made by the learned counsel for the appellant. But, as seen above, admittedly, the appellant-complainant claimed that it is a money lender, but has not produced any licence as required under law and further the amount alleged to have been advanced by the complainant cannot be said to be a loan as defined under the Andhra Pradesh (Telangana Area) Money Lenders Act, 1349 Fasli. But, as seen above, admittedly, the appellant-complainant claimed that it is a money lender, but has not produced any licence as required under law and further the amount alleged to have been advanced by the complainant cannot be said to be a loan as defined under the Andhra Pradesh (Telangana Area) Money Lenders Act, 1349 Fasli. Since the appellant had no money lending business licence, it cannot be said that there was a legally enforceable liability of the respondent in view of Section 9(2) read with Section 2(4) of the Andhra Pradesh (Telangana Area) Money Lenders Act, 1349 Fasli. Once an Act declares that a particular transaction is illegal, it cannot be made legal for the purpose of any other Act. The sheet-anchor of Section 138 of the Act is as to legally enforceable liability against the respondent, which is conspicuously absent in the case on hand. Therefore, there was no legally enforceable liability against the respondent. I am of the opinion that the Judgment of the Court below is a well reasoned one and does not suffer from any irregularity or illegality. There are no grounds to interfere with the Judgment of the lower Court.” 28. Sri.Narasimhan S., learned counsel for the respondent is absent today. 29. In the light of the arguments put forth on behalf of the revision petitioner, this Court perused the records meticulously. 30. On such perusal of the material on record, signature found in Ex.P.1 and cheque belonging to the accused is not in dispute. 31. It is the specific contention of the accused that the said cheque was handed over to D.W.2 who was his financial broker and who got the money from the complainant and money was advanced through cheque transaction. 32. Therefore, the prima-facie ingredients to raise the presumption in favour of the complainant is available on record in view of the authoritative principals of law enunciated by Hon’ble Apex Court in series of decision including the decision of Rangappa Vs. Sri.Mohan reported in AIR 2010 SC 1898 . 33. Further, the said presumption is a rebuttable presumption. The Hon’ble Apex Court in the very same judgment, has observed as under: “What is required to be established by the accused in order to rebut the presumption is differed from each case under the given circumstances. Sri.Mohan reported in AIR 2010 SC 1898 . 33. Further, the said presumption is a rebuttable presumption. The Hon’ble Apex Court in the very same judgment, has observed as under: “What is required to be established by the accused in order to rebut the presumption is differed from each case under the given circumstances. But the facts remains that a mere plausible explanation is not expected from the accused and it must be more than plausible explanation by way of rebuttal evidence. In other words, the defense raised by way of rebuttal evidence must be probable and capable of being accepted by this court.” 34. In the light of the said authoritative principals, when the material on record is analyzed, admittedly, there was a financial transaction between the complainant and the accused. In fact, though the accused has stated that he did not have direct connection with the complainant and he had obtained the loan through D.W.2, who is his financial broker, there is an admission in his cross- examination that on an earlier occasion he had borrowed sum of Rs.18,00,000/- from the complainant. 35. The theory that is put forward to rebut the presumption is the misuse of the cheque by D.W.2 in active collusion with the complainant. According to D.W.1, the cheque in question was given as security to D.W.2 who filled up the date column and other particulars in Ex.P.1 and handed it over to the complainant which is a clear case of misuse. 36. If that is so, what prevented the accused to reply the legal notice issued by the complainant or take any positive action against D.W.2 and complainant for the alleged misuse of Ex.P.1, no explanation is forthcoming on record in this regard even though D.W.1 has categorically spoken about the alleged collusion. 37. Further, accused took summons to D.W.2 through the process known to law and he was examined. D.W.2 in his examination-in-chief itself, denied that he is acquainted with the complainant and accused. He also denied his hand writing in Ex.P.1 as well as Ex.P.8 which is a on demand promissory note executed by the accused in favour of the complainant. 38. In view of the above, he has been treated as hostile with the permission of the Court by the accused and he was cross-examined. He also denied his hand writing in Ex.P.1 as well as Ex.P.8 which is a on demand promissory note executed by the accused in favour of the complainant. 38. In view of the above, he has been treated as hostile with the permission of the Court by the accused and he was cross-examined. In the cross-examination, except suggesting to D.W.2 that the hand writing in Ex.P.1 and Ex.P.8 are that of D.W.2, no other material is elicited to probabilise the theory of the misuse. 39. It is the specific case of the accused that date column in Ex.P.1 is altered from ‘2009’ to ‘2010’ and therefore, the conviction of the accused is improper. Pertinently, the cheque at Ex.P.1 is not dishonored by the banker of the accused on the ground that there is a alteration in the date column but the cheque is dishonored on the ground that there is no sufficient funds. 40. It is to be noticed that when once the cheque is presented by the complainant through his banker, complainant would lose control over the instrument till the same instrument is either encashed or returned dishonored. The cheque gets cleared by the banker of the accused and not the banker of the complainant. 41. Having regard to the system and procedure that prevailed when the presentation of the cheques for clearing at the relevant point of time, it is the complainant banker who would physically carry the instrument to the clearing house and it is the accused banker who has to find out the balance and the validity of the cheque and issue suitable instructions or clear the cheque if it is in order. 42. In the case on hand, since the cheque is dishonored with an endorsement ‘funds insufficient’ and not with an endorsement that the date of the cheque is altered, the accused cannot be permitted to raise a defence that the cheque is not dishonored for want of funds but it is dishonored on the ground of alteration of the date and therefore, there is no action permissible under Section 138 of the Negotiable Instruments Act. 43. Having said so, except suggesting to the complainant that there is an alteration in the date column, no further proof is placed on record. 44. 43. Having said so, except suggesting to the complainant that there is an alteration in the date column, no further proof is placed on record. 44. It is also to be noticed that in the examination- in-chief itself, accused has stated that it is D.W.2 who has altered the date and it is not the complainant. When that is so, the question of the document being altered and therefore, the complainant is to be non-suited cannot be countenanced in law. 45. Having said thus, the next contention that has been taken by the accused to avoid the liability under the penal provisions of Section 138 is that the complainant is not possessing a money lending license though he is a money lender. 46. In that regard, learned counsel for the revision petitioner vehemently contended that the income tax returns filed by the complainant clearly shows that the complainant has lent the money to several people and for want of money lending license, the amount that has been lent by the complainant cannot be recovered in the eye of law and as such there is no legally recoverable debt which is a sine qua non for considering the offence punishable under Section 138 of the Negotiable Instruments Act. 47. In this regard, learned counsel placed reliance on the judgment of the Bombay High Court as well as Andra Pradesh High Court as referred to supra. 48. On close reading of the above decisions, it is crystal clear that both the Hon’ble High Courts have taken into consideration that if the complainant fails to produce the money lending license, the amount covered under the cheque would par take the nature of not a recoverable debt therefore, offence under Section 138 of the Negotiable Instruments Act is impermissible. 49. On close reading of the entire decision of both the Hon’ble High Courts, it is also to be noted that both the Hon’ble High Courts have not bestowed their attention to the presumption available to the complainant under Section 139 of the Negotiable Instruments Act. 50. More so, how such a presumption is to be dislodged by placing rebuttal evidence as is held in the case of Rangappa Vs. Sri. Mohan as referred to supra is not considered by both the Hon’ble High Courts in the aforesaid judgments. 51. 50. More so, how such a presumption is to be dislodged by placing rebuttal evidence as is held in the case of Rangappa Vs. Sri. Mohan as referred to supra is not considered by both the Hon’ble High Courts in the aforesaid judgments. 51. Therefore, this Court is of the considered opinion that the principals of law enunciated in the aforesaid judgments of Hon’ble High Court of Bombay and Andra Pradesh are of no avail in advancing the case of the revision petitioner any further. 52. In view of these aspects of the matter, learned Trial Magistrate and learned judge in the First Appellate Court in the impugned judgments has been dealt in detail. 53. Even after reconsideration of the above aspects of the matter, in the light of the revision grounds, this Court is of the considered opinion that the grounds urged in the revision petition are not sufficient enough to interfere with the well reasoned orders of learned Trial Magistrate confirmed by the First Appellate Court. Accordingly, having regard to the scope of this revision, this Court is of the considered opinion that the order of conviction needs no interference. 54. Having said thus, as against the cheque amount of Rs.15,00,000/-, learned Trial Magistrate has imposed fine of Rs.18,10,000/-. Out of the said amount, sum of Rs.10,000/- is ordered to be paid as defraying expenses of the State confirmed by the First Appellate Court. Since, lis is privy to the parties and no state machinery is involved, awarding fine amount of Rs.10,000/- towards defraying expenses of the State cannot be countenanced in law, to that extent both the judgments needs interference in this revision. 55. Hence, the following: ORDER i. Criminal Revision Petition is allowed in part. ii. While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, the fine amount ordered by the learned Trial Magistrate modified by the First Appellate Court in a sum of Rs.18,10,000/- is further modified to sum of Rs.18,00,000/- and sum of Rs.10,000/- imposed as fine towards the State is hereby set aside. iii. Entire amount of Rs.18,00,000/- is to be paid as compensation to the complainant. iv. In default of payment fine amount, accused shall undergo simple imprisonment for a period of two years. v. Time is granted for the accused to pay the balance amount till 31.07.2024.