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TMI Blog2023 (6) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Bombay set aside those conviction vide judgment dated 6th February 2006 (Appeal No. 672 of 2006 and 673 of 2006). The correctness of this common judgment is challenged by way of these two Appeals by the original complainant. The parties will be referred to by their original status. 3. I have heard learned Advocate Shri Ashok Gade for the Appellant-complainant and learned Advocate Shri Makrand Bakore for Respondent No. 1-accused and learned APP Shri Dedhia for the State. 4. Their main crux of argument is that once issuance of cheques are admitted, the presumption will come into picture and rebuttal evidence given by the accused in present case is insufficient. Another limb of the argument is about service of notice on proper address and drawing of presumption under Section 27 of the General Clauses Act. Apart from these specific grounds taken by 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on carrying out exercise to ascertain whether the findings are perverse or not. If they are perverse certainly the Appellate Court can interfere in the judgment of acquittal. 7. The finding is said to be perverse when it is arrived at by including particular piece of inadmissible evidence or by overlooking the provisions of Codified law. On this background the findings recorded by the Court below needs to be considered. Case in nutshell and the findings 8. The complainant is a teacher working in Municipal School and earning salary of Rs. 14,000/- per month. She knows accused. There are two rival claims so far as advancement of money is concerned. According to the complainant, she gave hand loan of Rs. 1,00,000/- in April 2005, and hand loan of Rs. 2,00,000/- in May 2005. The two cheques in 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The provisions of Negotiable Instrument give authority to the payee to make it complete. (f) After taking overview of the decisions it was held in case of Nikhil P. Gandhi (supra) that payee may on the basis of implied or express consent fill up the details at the subsequent point of time and present it for payment. 12. It is also true that the Hon'ble Supreme Court in case of Basalingappa (supra) has elaborately summarized the principles on the point of presumption. If the execution of the cheque is admitted, what can be the inferences is summarized in para 25.1. For better understanding, they are reproduced as follows : (a) It is to be presumed that the cheque was issued for discharge of debt or their liability. (b) The presumption 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the accused has deposed about filing of complaint to police (about act of threatening by the complainant due to stopping of payment by accused), the trial Court observed that "the contents of that complaint are not proved through the concerned police officer (para 8). The trial Court further observed that "if the cheques are issued toward chit fund in the year 2003, but they were misused in the year 2005, the accused ought to have stopped payment which he has not done". (para 9). The trial Court has not reposed confidence in evidence of the accused (para 10). For the above reasoning the trial Court accepted the case of the complainant and convicted the accused in both 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrected from the figure 3 to 5. It is denied by the complainant. 23. When the accused has admitted his signature, he has given authority to the complainant to make 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. As stated above, the signatures and amount in figures are of accused. So filling other details cannot be said to be material alteration. 24. The facts of Pinak Bharat & Company V. Anil Ramrao Naik reported in 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on 16th December 2003. So the year of issuance of these cheque books cannot be disputed. In this case, the complainant had deposed that date is filled in by the complainant himself. In one case, she has given explanation that as accused has not brought specs, she has filled in those details. I do not think that time gap in between issuance of the cheque book and dates written on these two cheques has got any material bearing on the case . Because unless and until, all the details are not filled in, it does not become complete negotiable instrument. (b) (i) Cheques were not issued towards 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 notice will be in position to identify the signature and not otherwise. But the address on the envelope is not disputed by the accused. So the presumption under section 27 of the General Clauses Act will certainly help the complainant. Both the sides have relied upon certain judgments on the point of manner of discharge of burden to prove service of notice. I am not going into facts of these judgments. It is for the reason that I have already concluded that the complainant has not satisfied the material ingredients for the offence under section 138 of the N.I. Act.
33. For the above discussion, it cannot be said that the findings given by the Appellate Court are perverse. Only on one aspect about proving financial capacity, I am not with the Appellate Court, however, for the rest of issues, I agree with the conclusion drawn by the Appellate Court. So no case for interference is made out. Both the Appeals are dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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