VIDYASAGAR Vs. NARAYANREDDY

JUDGEMENT

(1.) APPEAL is by the complainant against the order of the Pr. JMFC, Gulbarga in CC 3234/2004 on 3.5.2010 for the offence under S. 138 of the Negotiable Instruments Act. A private complaint was filed before the JMFC alleging dishonour of cheque for insufficient funds. According to the appellant/complainant, respondent had approached him for loan of Rs. 50,000/ - for his family and other legal necessities during February 2003 and promised to pay the same in a short period. The, complainant gave Rs. 50,000/ - to the accused and towards repayment of the loan, respondent issued a post dated cheque bearing No. 0821143 dated 10.9.2003. On presentation, the cheque was dishonoured for insufficient funds. The same was intimated to the accused by the complainant. Since there was no response, he issued a notice on 22.3.2004 which came to be received on 11.4.2004. In spite of the notice, for non -payment, complaint came to be filed. Learned Magistrate having taken cognizance, issued summons and recording 'the plea of not guilty', posted the case for complainant's evidence. Appellant was examined and eight documents were got marked. On behalf of the accused, he himself was examined as DW 1 and got marked two documents. The Magistrate having held the complainant failed to prove that accused had borrowed a sum of Rs. 50,000/ - by issuing a post dated cheque drawn on Krishna Grameen Bank, Bidar Branch, acquitted the accused. Hence, this appeal.

(2.) HEARD the counsel representing the parties.

(3.) ON the other hand, counsel representing the respondent submitted, already loan amount was paid and there is no legally enforceable debt. Apart from that, as rightly observed by the trial court, there is material alteration. Alleging there are three transactions, the complainant tried to misuse the cheque which was given as security and on presentation, on dishonour, complaint is filed against the accused. It is stated, there is no legally enforceable debt and it is admitted there is material alteration as per S. 87 of the Negotiable Instruments Act and the cheque has to be rejected in entirety in the absence of any explanation as to material alteration.