TMI Blog2006 (11) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... .7.2004 with endorsement that the funds were insufficient, whereupon the complainant addressed a registered notice dated 21.2.2004 to the accused through his Advocate demanding the said amount of Rs. 70,000/- with interest at the rate of 18% per year within 15 days from the receipt of the notice and the accused replied the said notice vide reply dated 21.9.2004 stating that the accused had repaid the borrowed sum of money but the complainant had not returned the cheque to the accused. Since the accused failed to pay the amount to the complainant as demanded on or before 10.9.2004, the accused filed the complaint. 3. The complainant examined himself in support of his case and produced the subject cheque, the cheque return memo, the copy of the notice along with A.D. Card and the reply sent by the accused. 4. The case of the accused, as seen from his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 is that he was in need of money and one Simon had introduced him to the complainant and the complainant had agreed to give him money. The complainant after deducting 7% interest gave him Rs. 27,000/- and he paid full amount to the complainant in the year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order of acquittal is founded and to reach a conclusion that upon that evidence, the Order of acquittal should be reversed. Acquittal of the guilty and the conviction of the innocent are both required to be avoided. The Court is only required to bear in mind that with the acquittal the initial presumption of innocence of the accused gets fortified by the acquittal and not weakened and if two views or two conclusions are possible based on the evidence produced before the Court then this Court will decline to interfere and substitute its own view with that of the Trial Court but if the view taken by the Trial Court is unreasonable, and this will be demonstrated hereinafter, it is the paramount duty of this Court to set the acquittal aside. It is well to remember that the paramount consideration of the Court is to ensure that justice is done and miscarriage of justice is prevented. 8. Section 87 of the Act deals with effect of material alteration, and, provides that any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto unless it was made in order to carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court has held that no law provides that in case of any negotiable instrument the entire body has to be written by maker or drawer only and what is material is the signature of the drawer or maker and not the body writing. It has also been stated that when any negotiable instrument has been given or executed, a presumption can be raised under Section 118 of the Negotiable Instruments Act then the negotiable instrument was made or drawn for valid consideration. As already stated, the evidence of the complainant clearly shows that it is the complainant who had written the body of the cheque and the accused had signed the same. The reply filed by the accused does not show that any blank cheque was issued by the accused to the complainant and the plea of the accused subsequently taken has therefore to be considered as an afterthought, and therefore there was no question of the complainant having carried out any alteration much less material alteration to the cheque so as to invite the applicability of Section 87 of the Act. The reply of the accused gives a clear impression that the amount borrowed was repaid by the accused. 10. That apart when a person hands over a blank chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque is issued duly signed by the drawer and the holder completes the same in other respects namely as regards the amount due and the date, the presumption would still be available to the complainant/holder unless the accused shows that the said particulars were filled in without the consent of the accused/drawer. 11. From whatever angle one looks at the case of the complainant, the complainant was certainly entitled to all the presumptions available in his favour under the Act with the handing over of the said cheque, the complainant having received the same with all the presumptions under the Act and it was for the accused to rebut the said presumptions particularly the presumption available to the complainant under Section 139 of the Act. 12. The Apex Court in the case of Hiten P. Dalai v. Bratindranath Banerjee 2001CriLJ4647 , speaking through three learned Judges, stated that both Sections 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. The Supreme Court also observed that the obligation on the prosecution may be discharged with the help of presumptions of law or fact unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is witness but as the accused did not give his complete address, he could not be summoned and examined in the case. In case no money was given to the accused, it was for the accused to have examined the said Simon in support of his version that he had not received the consideration of Rs. 70,000/- for which the accused had given the subject cheque. In fact, the accused had admitted in the cross-examination of the complainant that the accused had borrowed only Rs. 30,000/-. Adverse interference, if any, has got to be drawn against the accused and not against the complainant since it was for the accused to have proved whether he had repaid Rs. 70,000/- or Rs. 30,000/-. It is also submitted on behalf of the accused that since there are many cheque bouncing cases filed by the complainant, it shows that the complainant was in the habit of filing false cases. This submission cannot be accepted to displace the presumptions in favour of the complainant. 14. As already stated, the accused in reply to the notice, has admitted the issuance of the cheque of Rs. 70,000/- but has stated that it was given as a security for the sum of money borrowed by him and which was repaid. The burden was e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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