TMI Blog2023 (6) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheques complete in all respect. It is true that if there is material alteration that is to say any alteration carried out without consent of the parties, it affects the validity of negotiable instrument as contemplated under section 87 of the N.I. Act - the signatures and amount in figures are of accused. So filling other details cannot be said to be material alteration. The burden on accused is not heavy as that of the complainant. The Court has to see whether probable case so as to create dent in case of the complainant has been made out or not. The law does not provides for contingency of adducing evidence by the complainant, after accused has adduced evidence. From the cross examination, the complainant has to forsee what type of case is pleaded by the accused. The complainant has failed to anticipate that contingency. So the beneficiary is none other than accused. Service of Notice - HELD THAT:- The issue of service of notice is only of academic importance. It is true that the complainant could not state that the signature on acknowledgment belongs to accused. If the accused is available at the time of delivery and if she has signed, the complainant/sender of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant, there is objection taken by the accused to interfere in the judgment of acquittal. So these Appeals need to be decided on following main points : - Points involved (a) Whether presumption is rebutted by the accused directly or indirectly ? (b) Whether that rebuttal evidence is only by way of denial or whether in fact it is sufficient to rebut the presumption ? (c) Whether notice is served on the accused and whether this fact can be proved either by drawing presumption or on the basis of available evidence ? (d) Whether it can be said that findings by the Appellate Court are perverse so that it can be interfered in the Appeal ? Job of the Court 5. It is true that the complainant/payee of the cheque can rely upon presumption incorporated by way of section 139 of the Negotiable Instrument Act. It deals with existence of legally recoverable debt or liability. Many a time accused only takes a defence of denial, that s to say denying existence of liability, issuance of cheque and further procedural compliance. In this contingency the job of the Court is only restricted to scrutinise whether presumption is rebutted simply on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question drawn on Central Bank of India were issued by Respondent No. 1- accused in favour of the complainant towards discharge of those amounts. Whereas accused pleaded that the complainant herself and one Mr. Kamble were running chit fund, and the cheques in question were issued towards the chit fund in order to show to the members. This story was put up when she gave evidence before the trial Court. Furthermore, the accused took defence that they were blank cheques issued in the year 2003-2004, but were deposited subsequently by putting dates. In addition to these grounds, accused also took defence about non service of statutory notice. 9. Both learned Advocates have relied upon various judgments by Appellants : Judgments by Appellant (a) Bir Singh Vs. Mukesh Kumar (2019) 4 SCC 197 ((b) T. Vasanthakumar Vs Vijaykumari (2015) 8 SCC 378 (c) Noble T. Francis Vs. Seleena Jos 2005 Cri. L.J. 993 (d) Nikhil Gandhi Vs State of Gujarat Anr 2016 Cri. L.J.4338 (e) M/s. Kalamani Tex Anr. Vs. P.Balasubramaniam (2021) 5 SCC 283 Judgments relied upon by Respondents (a) V. Raja Kumari Vs P.Subbarama Naidu Anr. (2004) 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumption is not conclusive but it is rebuttal presumption. The accused can raise probable defence. (c) The standard for rebutting presumption is that of pre-ponderence of probabilities. (d) The accused can rely upon his own evidence or even can rely upon the materials submitted by the complainant to raise probable defence. Findings of Appellate Court 13. On the basis of above principles, it will be relevant to consider the findings given by the Appellate Court. They are as follows : (a) There are certain observations about financial capacity of the complainant to advance loan. Money was not withdrawn by her from the bank. Even cash was not lying with the complainant. The complainant is not financially sound and she has borrowed money from fellow teachers. However, these details are not given. So also said teacher is not examined. (para 4) (b) Proof about advancing loan :- No details are given as to when, at what time and in whose presence the advance was made by the complainant. There is no writing to that effect (para 4) (c) About evidence of the accused :- The cheque book containing the cheques was issued to the accused in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the complaints . Consideration 17. When both these judgments are perused, we may find that the trial Court has laid emphasis on particular instances whereas the Appellate Court has put emphasis on other circumstances. It is true that when for the first time the Appellate Court is appreciating evidence, re-appraisal is permissible, whether it is an Appeal against judgment for conviction or against judgment of acquittal. Only difference is in Appeal against judgment of acquittal, the Appellate Court should be slow in interfering the judgment. While dealing with this Appeal also, this Court, should also be slow in interfering the judgment of acquittal, whether it is passed by the trial Court or by the Appellate Court. 18. So this Court has only to ascertain as to whether the evidence has been properly appreciated and while accepting or discarding particular piece of evidence, whether the principles of Evidence Act have been applied properly or not. So to say when the witness is a writer of particular document, the said document can be proved through himself also and for proving the contents it does not require third person. 19. Many a time the trial Court or Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n AIR Online 2022 Bom 614 are different. There was civil dispute in between parties about entitlement to amount. On the set of said facts, filling in details in the cheques was considered as material alteration and the Hon ble Supreme Court has categorically observed about authority of the payee to make blank cheque complete in case of Bir Singh (supra). Similar are observations in case of Nikhil P. Gandhi (supra). 25. On the basis of above facts it can certainly be said that the complainant is entitled to rely upon presumption under sections 118 and 139 of the N.I. Act. In nutshell it has to be presumed that the cheque was issued towards discharge of debt or liability. 26. The Appellate Court has laid emphasis on not leading any evidence by the complainant on the point of his financial capacity. The complainant is teacher working in Municipal School and earning Rs. 14,000/- per month as salary. Even she has stated that she has borrowed money from fellow teacher. The said teacher is not examined. At this juncture, the Appellate Court has failed to apply the law, correctly, because when the conditions for drawing presumption under section 139 of N.I. Act are satisfied, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repayment of loan taken by her but they were issued towards chit fund. Even the complainant has admitted that there was chit fund consisting herself, accused and one Kamble. Out of these two cheques, one cheque was issued to show the members. In fact, accused owes an amount of Rs. 50,000/- only. The accused also paid interest till October 2005 and when she stopped interest, the complainant threatened her to teach a lesson on the basis of cheque. It is matter of record that the accused has filed the complaint with RCF police station. Its extract is on record. It is true that the said extract contains information recorded on the basis of the complaint given by the accused. No doubt she is not writer of that document but she has not disowned that complaint. (ii) The complainant was also cross examined by the accused. The Appellate Court observed that theory put up by the accused was not seriously challenged. I do find that there are certain lacunae in this theory of chit fund put up by the accused. So to say how many members are there, when the accused has withdrawn money from chit fund and as to how she has discharged her liability. This theory of chit fund was also put ..... X X X X Extracts X X X X X X X X Extracts X X X X
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