CAPITAL SYNDICATE Vs. JAMEELA

JUDGEMENT

(1.) This appeal is at the instance of the complainant in C.C. No. 312/99 before the Judl. First Class Magistrate's Court, Kunnamkulam. The firm Capital Syndicate through its Manager filed the criminal complaint against the accused Jameela alleging commission of offence under S.138 of the Negotiable Instruments Act (for short, hereinafter referred to as 'the Act'). The accused obtained hire purchase facility from the complainant firm, doing financial business, in respect of her autorikshaw bearing No. KL - 10/7100 and received an amount of Rs. 27,950/- by executing Ext. P3 agreement on 8.10.1983. The entire amount with interest thereon had to be repaid in 36 instalments. It was alleged that after remitting 8 instalments, the accused defaulted and when the complainant demanded repayment of the entire balance amount, in April 1999, the accused issued a cheque drawn on Dhanalakshmi Bank, Kunnamkulam Branch for an amount of Rs. 36,000/-. On presentation of the above cheque for encashment, it was dishonoured due to the insufficiency of funds in the account of the accused and after complying with all the necessary legal formalities, the Manager of the firm Capital Syndicate filed the criminal complaint. The Manager of the firm was examined as PW. 1 and Exts. P1 to P10 were marked on the side of the complainant. On the side of the accused DWs. 1 and 2 were examined and Exts. Dl and D2 were marked. After considering the entire evidence, the court below found the accused not guilty of the offence under S.138 of the Act and acquitted her under S.255(1) of Cr. P.C. Aggrieved by the above, the complainant filed this appeal, with the leave of the court, challenging the order of acquittal.

(2.) The accused / First respondent herein availed of hire purchase facility and received Rs. 21,950/- from the appellant financier by executing Ext. P3 hire purchase agreement in respect of her autorikshaw and the entire amount, with interest thereon, had to be repaid in 36 instalments. The first respondent remitted only 8 instalments and thereafter defaulted in paying the remaining instalments. According to the appellant, when a demand was made for payment of the entire defaulted instalments, the first respondent had gone to the office of the appellant in April 1999, and issued Ext. P5 cheque for Rs. 36,300/- and the above cheque when presented for encashment, was dishonoured due to the insufficiency of funds in the account of the first respondent.

(3.) The learned counsel for the appellant submitted that a presumption under S.139 of the Act should have been drawn in favour of the appellant that the cheque had been issued in discharge of a legally enforceable debt and accordingly the accused should have been found guilty of the offence under S.138 of the Act. The definite case put forward by the first respondent was that at the time of executing the hire purchase agreement the appellant financier had obtained two blank cheques signed by the first respondent without any further entries regarding the date, payee's name and the amount and later, after nearly 6 years, the appellant misused the above cheque leaf by making false entries regarding the amount, name of payee and date without the knowledge or consent of the first respondent and thus there had been material alteration of the cheque rendering it void under S.87 of the Act. The learned counsel for the 1st respondent further argued that the issue of a cheque leaf with the signature of the drawer only make the instrument a 'cheque' as defined in the Act and a presumption under S.118 or 139 of the Act would not be drawn in respect of such an instrument. A cheque is defined in S.6 of the Act as: