TMI Blog2018 (11) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out by the learned counsel for the appellant that the first Appellate Court by surmises and conjectures has laid its conclusion that the variance in colour and writings found in the subject cheques, amounts to material alteration in the Negotiable Instrument. The said findings of the First Appellate Court is perverse, contrary to law - The evidence of D.W.2, and the explanation of the accused goes to show that the subject cheques were given to the complainant on 04.11.2011 itself when he mortgaged the property and obtained loan of ₹ 2,00,000/- gets falsified. The order of the First Appellate Court bristles with infirmity and perversity - appeal allowed. - Crl.A.(MD)Nos.288 & 436 of 2018 - - - Dated:- 12-10-2018 - Dr. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentenced him to undergo six months Simple Imprisonment and to pay ₹ 4,00,000/- as compensation in C.C.No.206 of 2012; and sentenced him to undergo six months Simple Imprisonment and to pay compensation of ₹ 2,00,000/- in C.C.No.222 of 2012. 4. The respondent/accused herein has preferred Appeal before the District and Sessions Judge, Viruthunagar in C.A.Nos.86 and 87 of 2016. The Appellate Court reversed the findings of the trial Court and acquitted the accused. Aggrieved by the said reversal of judgment, the present Appeal has been filed alleging the lower Appellate Court erroneously reversed the trial Court judgment. 5. Per Contra, the learned counsel for the respondent/accused would contend that the trial Court failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his defense, he has examined himself and also two other witnesses. The mortgage deed dated 04.11.2011 also been marked as defense Ex.D.1 9. The trial Court considered the consistency in case of the complainant and contradictions between the evidence of D.W.1 and D.W.3, which falsifies the explanation offered by the accused to rebutt the presumption and has convicted the accused. Whereas, on appeal, the First Appellate Court pointing out that when a mortgage loan of ₹ 2,00,000/- not discharged, no person will lend a further loan of ₹ 4,00,000/- and ₹ 2,00,000/- Further, the signatures and writings in the subject cheques were in two different ink and two different hand writings. If the cheques were issued on the day wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s laid its conclusion that the variance in colour and writings found in the subject cheques, amounts to material alteration in the Negotiable Instrument. The said findings of the First Appellate Court is perverse, contrary to law. 13. The above contentions of the learned counsel for the appellant deserves consideration. It is not disputed by the accused that the said cheques was issued by him to the complainant. The difference in ink colour and writings does not amount to material alteration as observed by the First Appellate Court. The Appellate Court ought to have not understood the spirit of Section 20 of the Negotiable Instruments Act. While considering the presumptive provisions under Sections 118 139 of the said Act, a cheque iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the burden, the accused has examined himself and also one of his friend/D.W.3, while D.W.1 would say that the cheques were issued on the date of executing the mortgage deed Ex.D1 (i.e.,) on 04.11.2011 whereas D.W.2, the Bank Manager has deposed that the complainant gave a request for issuance of cheques on 04.01.2012 and pursuant to that, he issued cheques on 05.01.2012. The evidence of D.W.2, and the explanation of the accused goes to show that the subject cheques were given to the complainant on 04.11.2011 itself when he mortgaged the property and obtained loan of ₹ 2,00,000/- gets falsified. 16. Similarly, the evidence of D.W.3/ Ramasubbhu also does not enhance the case of the defence. He was not a witness to the mortgage deed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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