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TMI Blog2023 (11) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... .2014. The part payment of an amount of Rs. 1,50,00 was made by the respondents in different installments. Due to a financial crunch, the accused had once again urged the complainant for further financial help, pending an earlier outstanding amount. On 28.11.2014, the complainant had lent an amount of Rs. 2,50,000/- to the accused. At that stage, the accused had assured the complainant to make repayment of the total amount of Rs.5,50,000/-. The transaction between the parties had continued whereby the accused in different installments had made payment of Rs.1 Lakh. It is the case of the complainant that once again, the accused had borrowed the amount of Rs.2 Lakhs on 01.10.2015 and thereafter, an amount of Rs.1,49,000/- on 13.10.2015. Thus, the total outstanding amount to be realized from the accused was Rs.8,89,000/-. It is further contended that lastly the accused had approached the complainant on 04.04.2016 for financial assistance for an amount of Rs.1,50,000/-. Against which the complainant claims to have paid an amount of Rs.1 Lakh. Thus, it is the case of the complainant that the total amount to be recovered was Rs.9,99,000/-, which was otherwise assured by the respondent ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xhibit 16), cover carrying legal notice with endorsement of refusal (Exhibit 17), income tax returns filed by the complainant for F.Y. 2013-14 (Exhibit 29), for F.Y. 2014-15 (Exhibit 30), for F.Y. 2015-16 (Exhibit 31), for F.Y. 2016- 17 (Exhibit 32), for F.Y. 2017-18 (Exhibit 33), for F.Y. 2018-19 (Exhibit 34) and for F.Y. 2019-20 (Exhibit 35). On the other hand, the original accused had failed to lead any evidence, however, the statement of the accused, recorded under Section 313 of the Code of Criminal Procedure, has come on record. In the special defence raised by the accused, it is contended that the complainant is engaged in the business of lending hand loan by charging interest and having borrowed from the complainant, the blank cheque was handed over to the complainant. Though the amount has been realized, the complainant, by incorporating the false details of the amount in the disputed cheque, has raised false claims against the accused. It was therefore urged by the accused not to entertain the complaint. 2.6 The learned Magistrate upon appreciation of the evidence being brought on record by the original complainant, after taking into consideration the relevant statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention of this Court to the aforesaid findings and reasons recorded by the learned Magistrate, has placed reliance on the admission of the accused as reflected in statement recorded under Section 313 of the Code of Criminal Procedure with regard to signing of the cheque as well as issuance of the said cheque in the name of the complainant. The learned advocate has emphasized on the fact that though the question was put to the complainant with regard to incorporation of details of the figure in the cheque, the same has been categorically denied by the complainant. In such circumstances, the burden had continued upon the respondent - accused to establish his defence of misuse of blank security cheque. He further emphasized on the fact that in absence of any evidence being led by the respondent - accused, there was no rebuttal of presumption in the eyes of law and thus, the learned Magistrate having satisfied with the compliance of the basic ingredients of Section 138 of the Negotiable Instruments Act, the accused ought to have been convicted for the said offence. He, therefore, urged this Court that an arguable case lies to grant special leave to appeal and let the evidence be cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent respondent - original accused. 6. In support of his submissions, the learned advocate has placed reliance on the judgment of the learned Single Judge of Karnataka High Court in the case of Herman Castelino Vs. Dr. Suresh Kudva reported in 2022(3) AIR Kar R 314. By referring to the aforesaid judgment, learned advocate submitted that the incorrect additional amount of Rs. 1 Lakh towards dues amounts to material alteration which renders negotiable instrument void in absence of any common intention of the respective parties. In such circumstances, the accused cannot be held guilty of the alleged offence. Learned advocate has further relied upon judgment of the Bombay High Court in the case of M/s. Pinak Bharat and Company Vs. Shri Anil Ramrao Naik and Ors. reported in 2023(2) Mh. LJ (Cri.) 183 for the proposition of law that incorporation of date on cheque without authority of the accused amounts to material alterations in the cheque, which could not attract the offence punishable under Section 138 of the Act. By making aforesaid submissions, learned advocate submitted that no arguable case is made to consider the appeal for admission and has urged this Court to dismiss the leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge of any debt or liability under Section 138 of the Act. However, such presumption is subject to probable defence to be raised by the accused to create doubt with regard to existence of any debt or liability. In case of Rangappa Vs. Sri Mohan reported in 2010(11) SCC 441, the Hon'ble Supreme Court held that the standard of proof to discharge of such presumption can be in the form of probable defence which is weighed on the scale of preponderance of probabilities. As noticed hereinabove, in the present matter, the learned Court below has consciously and carefully taken into consideration this aspect, which has emerged on record to arrive at finding with regard to the discrepancy in the amount dues to be realized from the respondent accused, coupled with the fact that the original complainant has failed to offer any explanation with regard to the additional amount of Rs.1 Lakh. In my opinion, no fault can be found in the approach of the learned Magistrate in shifting the burden upon the original accused to prove his case beyond reasonable doubt. The discrepancy noted in the amount due against the respondent - accused against which the cheque is alleged to have been issued goes to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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