WILSON MARCELIN CARVALHO Vs. KRISHNA BUDHAJI PATIL

JUDGEMENT

(1.) This appeal by the complainant in C.C. No. 724/2006 on the file of the JMFC-IV Court, Belgaum is directed against the judgment and order dated 23.2.2007 passed in the said case acquitting the respondent-accused of the charge levelled against him for the offence punishable under Section 138 of the Negotiable Instruments Act (for short "the Act"). The appellant filed complaint under Section 200 of Cr.P.C. alleging offence under Section 138 of the Act against the respondent-accused inter alia contending that the accused for discharge of certain liability due by him to the complainant, issued two cheques each for Rs. 50,000/- on 8.6.2005 and when the said cheques were presented for encashment, they were returned unpaid on the ground of insufficiency of funds in the account and in spite of service of statutory notice, the accused failed to pay the amount covered under the cheques as such he has committed the aforesaid offences. The accused appeared before the learned Magistrate and pleaded not guilty for the accusation made against him. The complainant examined himself as PW1 and relied on documentary evidence Ex.P.1 to P.4. The accused during his examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against him. By way of defence though the accused did not lead any oral evidence, he relied on two documents marked as Exs.D.1 and. D.2. The defence of the accused was that the cheques in question were not issued on 8.6.2005 for discharge of debt or any liability. According to him, these two cheques alongwith few other cheques were delivered to the complainant as per the terms of the settlement deed dated 25.8.1999 copy of which is marked as Ex.D.1 and they bore date as 25.6.2000 and 26.6.2000 and subsequently though he discharged the liability, later the complainant has misused those two cheques by altering the dates. It was also his defence that since the cheques were not presented within the date of validity, no offence under Section 138 of the Act is committed. He also contended that as on the purported date of the cheques, the alleged debt was time barred, therefore, assuming for the purpose of argument that the cheques were issued on 8.6.2005, they could not have been termed as having issued for discharge of legally enforceable debt to constitute an offence under Section 138 of the Act.

(2.) After hearing both sides, the learned Magistrate on assessment of oral as well as documentary evidence, by the judgment under appeal, acquitted the accused of the charge levelled against him principally on the ground that there has been alteration of the date of the cheques in question as is evident from contents of Ex.D. 1, therefore, the cheques were materially altered without the authority of the drawer as such the accused is not guilty of the offence under Section 138 of the Act. The learned Magistrate also held that as is evident from Ex.D.1, the two cheques bore dates as 25.6.2000 and 26.6.2000 and since admittedly the cheques were presented for encashment in the year 2005, the presentation of the cheques for encashment was beyond the period of its validity, therefore, the offence under Section 138 of the Act is not made out. The learned Magistrate also held that as on the purported date of the cheques, the debt had become time barred and, therefore, the cheques in question cannot be held as having issued for discharge of legally enforceable debt to attract offence under Section 138 of the Act. In this view of the matter, the learned Magistrate dismissed the complaint and acquitted the accused. Aggrieved by the said judgment the complainant has presented this appeal.

(3.) The respondent-accused has appeared through his Counsel on service of notice of this appeal.