B RAJAGOPAL RAO Vs. D C MEHTA

JUDGEMENT

(1.) Aggrieved by the Judgment dt. 13.4.1998 passed in C.C.No. 205 of 1997 on the file of the VI Metropolitan Magistrate for Railways, Visakhapatnam acquitting the sole accused/respondent for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the Act'), the unsuccessful complainant filed the present appeal. The brief facts of the case are that the appellant was doing transport business and also a social worker and he knows the accused in connection with his business. The appellant has lent a sum of Rs. 5,17,700/- to the accused and in discharge of the said loan; the respondent issued a cheque for Rs. 5,16,700/- dt. 25.8.1992 drawn on Andhra Bank, Pittapuram colony branch. The appellant presented the said cheque for encashment in the Bank of India on 7.9.1992 in which he was having an account and his banker sent the cheque to the Andhra Bank, but the same was returned with an endorsement "funds insufficient" and thereupon the appellant got issued a legal notice dt.11.9.1992 demanding the respondent to pay the cheque amount within 15 days from the date of receipt of the notice and after receiving the notice, the accused sent a reply dt. 16.9.1992 stating that he did not issue the cheque for the said amount of Rs. 5,16,700/-. Hence, the accused is liable for the offence punishable under Section 138 of the Negotiable Instruments Act.

(2.) To prove the guilt of the respondent, the appellant himself was examined as Pw.1 and examined Pws 2 and 3 and got marked Exs:P.1 to P.23. Exs:D.1 to D.15 were marked on behalf of the respondent. On a consideration of the entire oral and documentary evidence, the court below refused to accept the evidence of the appellant and accordingly, while dismissing the complaint, acquitted the respondent of the offence punishable under Section 138 of the Act. The learned Senior Counsel Sri.C.Padmanabha Reddy strenuously contended before this Court that though a petition was filed by the appellant for sending the cheque in issue to an expert to ascertain as to whether the cheque was forged or not, the court below dismissed the said petition holding that there was no necessity to send the same to an expert. According to him, the opinion of the expert would clinch the issue as to whether the cheque was issued for an amount of Rs. 516/- or for Rs. 5,16,700/-. It is further contended by the learned Senior Counsel that Ex:P.2 is the Xerox copy of the cheque dt. 25.8.1992 and it does not contain any stroke '/' after 516 whereas Ex:P.1, the original cheque in issue contains the stroke '/' after 516 and therefore it shows that the stroke '/' after 516 was added subsequent to the filing of the complaint. It is further brought to the notice of this Court by the learned Senior Council that originally the cheque was returned only on the ground of insufficiency of funds and this was spoken to by the Bank Manager after verifying the records, whereas in the cheque return memo, which was marked as Ex:P.22,

(3.) it is mentioned that the cheque was returned on two grounds i.e. insufficiency of funds and also material alteration. According to him, all this is done only to create an impression in the mind of the court that there was material alteration in the cheque dt. 25.8.1992. Summing up the matter, the learned Senior Counsel requested this Court to remand the matter to the court below with a direction to send the cheque to an expert to ascertain whether the cheque was forged or not. On the other hand, the learned Counsel for the respondent Mr.Krishna Murthy contended that the petition to send the cheque in issue to an expert was filed in the year 1993 and the same was dismissed in 1993 itself and now the same cannot be agitated since the order rejecting the request of the appellant has become final. It is further contended by the learned Counsel for the respondent that even for a naked eye, it is clear that there are material alterations in the cheque dt. 25.8.1992 and it was issued only for an amount of Rs. 516/-but by any stretch of imagination, it cannot be said that it was issued for an amount of Rs. 5,16,700/-. It is further submitted by the learned Counsel for the respondent that it is not open for the appellant to request this Court to send the document in question to an expert when once the same was negatived and the order has become final.