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TMI Blog2019 (8) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.P1 the said 1,50,000/- has also been written in words. As per Section 20 of the Negotiable Instruments Act, when once the drawer of the cheque signs and delivers to another, then if it is incomplete negotiable instrument thereby he gives prima facie authority to the holder thereof to make or complete the instrument as a Negotiable Instrument - the figures and words written tallies with each other. Then under such circumstances the contention of the petitioner/accused that there is a material alteration of 1 in the said cheque Ex.P1 does not stand to any reason. It is the specific contention of the learned counsel for the petitioner/accused that the complainant is a stranger to accused and he was not acquainted with the complainant, but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. 2. I have heard the learned counsel for the petitioners/accused and the learned counsel appearing for the respondent/complainant. 3. The facts leading to the complaint are that since past five to six years complainant and accused were good friends. Because of the said relationship accused No.2 approached the complainant in the 1st week of December, 2008 seeking financial assistance of ₹ 1,50,000/- assuring to repay the said loan amount after three months. When the complainant demanded to repay the said amount, accused has issued the cheque bearing No.299969 dated 19.3.2009 drawn on The National Cooperative Bank Limited, Koramangala Branch, Bangalore- 560095. When the said cheque was presented for encashment same was returned with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der such circumstances, the question of he requesting DW2 does not arise at all. It is his further submission that the said cheque was given to DW2 and there was some dispute between DW2 and the accused and a false complaint has been filed against the accused. It is his further submission that the evidence of the accused clearly substantiates his case. This aspect has not been properly considered and appreciated by the Courts below. It is his further submission that in order to enforce the said complaint there must be a debt and without there being any debt the cheque has been submitted and requested the accused to pay ₹ 1,50,000/-. He further submitted that the source of income with which the complainant had paid the said amount has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsels appearing for the parties and perused the lower court records secured in this behalf and also other material which has been produced along with the petition. 8. The first and foremost contention which has been taken up by the learned counsel for the petitioner/accused is that there is material alteration in the cheque Ex.P1 and when material alteration of a cheque is there, then it is not a instrument worthy of reliance. In order to substantiate the said fact he relied upon the decision of the Hon'ble Apex Court in the case of M.B.Rajasekhar Vs. Savithramma reported in 2012 Crl.LJ 1463. I have carefully and cautiously gone through the said decision. The facts of the case on hand and the facts therein are quite different. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten '50', but subsequently when it has been suggested that the figure '1' has been inserted in the said cheque, the said suggestion has been denied. Be that as it may. Even as could be seen from the evidence of DW2 there is no examination-in-chief made by the learned counsel appearing on behalf of the accused. Only the said witness has been cross-examined for the reasons best known to the learned counsel who was appearing on behalf of the accused. In order to call it as evidence before the Court there must be examination-in-chief and there after cross-examined. If the said witness resile from the examination-in-chief, then under such circumstances he will get a right of cross-examination as if that witness has been treated as hostile. If th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised, it is a mandatory presumption and if at all any contentions has been taken by the accused, it is the accused who has to rebut the said presumption on preponderance of probabilities. 13. Keeping in view the above said proposition of law, if the other contentions which have been taken, are looked into, the said cheque has been issued to one Ramesh DW2, but as could be seen from the evidence of DW2, therein nowhere he has stated that the said cheque has been issued in his favour and even it is suggested by showing Cheque Ex.P1 that it is issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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