JUDGMENT :- This appeal is directed against the judgment and order dated 13-8-1999 passed by the learned Judicial Magistrate, First Class, Gadchiroli, in Summary Criminal Case No. 1585 of 1999, where under criminal complaint filed by the appellant against the respondent for the offence under section 138 of the Negotiable Instruments Act, was dismissed and consequently the respondent was acquitted of the said offence. 2. The facts of the case, in short, as disclosed in the complaint, are that the appellant (original complainant) was dealing in the business of hardware. The respondent (original accused) had purchased Nylon rope worth Rs. 27,360/- from the appellant on credit and admittedly issued a cheque bearing No. 240247 dated 3-8-1995 drawn on Allahabad Bank, Chandrapur Branch, in discharge of the said liability. The appellant deposited the above said cheque with his bank namely the Bank of Maharashtra, Gadchiroli Branch, for realization/collection of the amount on or about 6-10-1995, within the period of its validity. But, the said cheque was dishonoured, as was intimated to him by his bankers on or about 17-10-1995, on account of "insufficiency of funds" in the respondent's account. 3. The appellant further contended in the complaint that within the period of 15 days from the date of intimation from the Bank, he issued a registered notice through his Advocate on or about 26-10-1995, demanding the entire amount to be paid to the appellant within 15 days as contemplated under section 138 of the Negotiable Instruments Act. In spite of receipt of the said notice, the respondent did not pay the amount as demanded and hence the appellant filed the aforesaid complaint on or about 15-11-1995. 4. Before the trial Court, the respondent appeared and on hearing both the parties, the trial Court framed the charge against the respondent for the offence under section 138 of the Negotiable Instruments Act, vide Exh. 45. However, the respondent pleaded not guilty and claimed to be tried. Along with the complaint, the appellant filed the documents namely, the cheque admittedly issued by the respondent vide Exh. 33, bankers' presentation slip vide Exh. 34, covering letter Exh. 35, memo of returned clieque Exh.' 36, appellant's notice Exh. 37 and acknowledgment of notice by respondent Exh. 38. 5. However, the respondent pleaded not guilty and claimed to be tried. Along with the complaint, the appellant filed the documents namely, the cheque admittedly issued by the respondent vide Exh. 33, bankers' presentation slip vide Exh. 34, covering letter Exh. 35, memo of returned clieque Exh.' 36, appellant's notice Exh. 37 and acknowledgment of notice by respondent Exh. 38. 5. During the course of trial, the appellant examined himself at Exh.32, so also one Shri Vilas Thodge (P.W.2), the Manager of Allahabad Bank, who issued the Memo of Returned Cheque Exh.36. This witness, in his evidence, stated that the cheque in question for an amount of Rs. 27,360/- drawn by Tirupati Enterprises in favour of Maruti Traders dated 3-8-1995, was presented on 16th October, 1995, through the Bank of Maharashtra, for clearing. Said cheque was returned unpaid to Bank of Maharashtra on 16-10-1995 for the reason "insufficient funds", along with the memo. Said memo was signed by one 1. S. Siddhu, Officer of the Allahabad Bank. He identified his signature. When the cheque was brought to his notice, he stated that the said cheque was earlier presented through clearing on 14-8-1995, but that time also, the said cheque was returned for want of sufficient funds. This evidence of witness Vilas (P.W.2) who was admittedly working as the Manager at Allahabad Bank, Chandrapur Branch, went unchallenged. Thus, the version of the appellant that the respondent issued the cheque and that it was presented for realization to Allahabad Bank in which the respondent was having his account and that the said cheque was dishonoured for want of sufficient funds, has not been controverted by the defence. 6. The respondent was then examined under section 313, Criminal Procedure Code. In reply to the question No.3, regarding the issuance of the cheque dated 3-8-1995 for Rs. 27,360/- and the same being presented for encashment in the bank, he said, "It is true". What is surprising is that his reply to the next question i.e. question No.4 viz. "P.W. 1 further stated that the cheque was returned bounced because of insufficient funds in your account, what have you to say about it", the respondent's reply was, "It is true". The respondent did not dispute the fact that after the cheque was dishonoured, the appellant issued notice intimating the respondent the said fact and also that the respondent gave reply to the said notice. The respondent did not dispute the fact that after the cheque was dishonoured, the appellant issued notice intimating the respondent the said fact and also that the respondent gave reply to the said notice. Even to question No.6 namely, "P.W.2 Vilas stated that on 16-10-1995, cheque No. 240247 for Rs. 27,360/- was presented through the Bank of Maharashtra for clearing and it was returned for the reason of insufficient funds", the respondent's reply was, "it is true". These replies given by the respondent in his examination under section 313, Criminal Procedure Code clinchingly go to show that not only the factum of issuance of the cheque towards the discharge of liability arising out of purchase of nylon rope on credit, but also the dishonour of cheque, when presented in the Bank in which he had his account, for the reason of insufficient funds, is admitted. In spite of this admission and there being no specific averment in defence by the respondent that the cheque was not issued in discharge of liability, nor there being any contention on behalf of the defence that there was sufficient funds in his bank account, the trial Court dismissed the complaint and acquitted the respondent observing that it was for the appellant to prove by examining witness that there was sufficient funds in the bank account of the respondent. The trial Court also gave much weight on the contention of the respondent as stated in his reply to the notice issued by the appellant, wherein it is denied that though the cheque was issued for the sum of Rs. 27,360/-, actually, the respondent received nylon rope worth Rs. 7,980/-. Even the appellant, who was cross-examined on behalf of the respondent, stoutly denied the suggestion that nylon rope valued Rs. 7980/- was purchased and that for the said transaction, the accused had given cheque of Rs. 27,360/-. It is also to be noted that whatever respondent has stated in his reply notice, he did not lead any evidence to substantiate the said contention. But only because such contention was raised in the reply notice, the trial Court accepted the same to be true and it was on that basis, the trial Court came to the conclusion that the appellant has failed to prove that the cheque was dishonoured for insufficient funds and that though the respondent has issued the cheque for Rs. But only because such contention was raised in the reply notice, the trial Court accepted the same to be true and it was on that basis, the trial Court came to the conclusion that the appellant has failed to prove that the cheque was dishonoured for insufficient funds and that though the respondent has issued the cheque for Rs. 27,360/-, the actual liability was for an amount of Rs. 7,980/- as contended by the defence. Therefore, the trial Court observed that the cheque was not issued by the respondent in discharge of liability of Rs. 27,360/-. Consequently, the complaint came to be dismissed and the respondent was acquitted. Hence this appeal. 7. The learned counsel for the appellant vehemently submitted that when the respondent himself has not disputed the fact that he has issued the cheque for an amount ofRs. 27,360/- in respect of purchase of nylon rope on credit from the appellant for which bill Exh.66 was issued, the observations of the trial Court that the cheque was not issued in discharge of the liability of the amount mentioned in the cheque, are perverse. He further contended that the observation of the trial Court that it was for the appellant to prove that the cheque in question came to be dishonoured for want of sufficient funds in the bank account of the respondent, is totally perverse and gravely incorrect inasmuch as the respondent himself has not disputed the said fact. That apart, as pointed out earlier, appellant's witness Vilas (P.W.2) has categorically stated in his evidence on the basis of the record and memo issued by the bank along with the returned cheque, that the cheque was dishonoured for want of sufficient funds. If that is so, then it was absolutely a perverse finding recorded by the trial Court to the effect that the appellant failed to prove that the cheque was not dishonoured for want of sufficient funds, and that the cheque was not issued in discharge of liability of amount of Rs. 27,360/- that was due from the respondent arising out of the credit transaction. He, therefore, urged that the finding recorded by the trial Court so also the consequential acquittal of the respondent, is not sustainable at all. 27,360/- that was due from the respondent arising out of the credit transaction. He, therefore, urged that the finding recorded by the trial Court so also the consequential acquittal of the respondent, is not sustainable at all. To substantiate his submissions, he placed reliance on the decision of the Calcutta High Court in the case of Dhrubjyoti Dutta vs. State of West Bengal and another, reported in 2006(1) Banker's Journal 300, in which it is held that the presumptions under section 138 as well as section 139 of the Negotiable Instruments Act are in favour of the complainant. When the accused did not lead any evidence to rebut the presumptions and to establish that the cheque in question, which was dishonoured by the bank, was not given by him to the complainant in discharge of any debt or any existing liability, the Court held that the complainant has proved that the accused committed an offence under section 138 of the Negotiable Instruments Act. He pointed out that in the instant case, in the first place, the respondent has clinchingly admitted that he issued the cheque for the said amount in favour of the appellant in respect of the dealing where under nylon rope worth Rs. 27,360/- was purchased on credit by him. He further pointed that the respondent did not deny the fact that the cheque was dishonoured for want of sufficient funds. The respondent has contended in his reply notice that though the cheque was issued for an amount of Rs. 27,360/-, the actual liability was for Rs. 7,980/-. However, he did not lead any evidence in support of his case. That apart, the evidence of the appellant and his witness Vilas (P.W.2) in that regard has not been controverted. Therefore, mere raising a dispute and making a statement in that regard in the reply notice, according to the learned Advocate for the appellant, is not sufficient to rebut the presumptions. He, therefore, submitted that the appeal should be allowed and the judgment and order of the trial Court of acquittal of the respondent be quashed and set aside and the respondent should be convicted for the offence under section 138 of Negotiable Instruments Act. 8. As against that, Mr. D. C. Daga, the learned counsel for the respondent, vehemently submitted that these proceedings being criminal proceedings, no burden lies on the accused even to substantiate his defence. 8. As against that, Mr. D. C. Daga, the learned counsel for the respondent, vehemently submitted that these proceedings being criminal proceedings, no burden lies on the accused even to substantiate his defence. Whatever the respondent has stated in his reply notice challenging the claim of the appellant, and thereby disputing the liability in respect of credit dealings which, admittedly, he had with the appellant, it was for the appellant to lead evidence and in the absence of any evidence, the trial Court was right in acquitting the respondent. In support of his contention, he placed reliance on the decision of the Apex Court in the case of Dr. S. L. Goswami vs. State of Madhya Pradesh, reported in AIR 1972 SC 716 wherein it has been observed that the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged, that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea, he will be entitled to the benefit of reasonable doubt. 9. The observations of the Apex Court as stated above, cannot be disputed as to the fundamental in criminal trial as to the onus of burden of proof on the prosecution. It is the contention of the learned counsel for the appellant that the respondent should have proved that the cheque was not issued for discharging the liability of an amount ofRs. 27,360/-. It is the contention of the learned counsel for the appellant that the respondent should have proved that the cheque was not issued for discharging the liability of an amount ofRs. 27,360/-. But then when the prosecution evidence on record clinchingly establishes that the respondent issued the cheque in respect of credit transaction of purchase of nylon rope worth Rs. 27,360/- and the said cheque came to be dishonoured for want of sufficient funds and when the respondent has not disputed this factual position, in that case, it is not sufficient for the respondent to merely make a bare statement in the reply notice that the liability was for the sum of Rs. 7,980/- though the cheque was issued by him for the sum of Rs. 27,360/-. In this context, it is also pertinent to note that the issuance of bill in respect of credit transaction with the respondent, clearly establishes that the transaction was for a sum of Rs. 27,360/- and not for Rs. 7,980/-. If that is so, then in view of the fact that the respondent himself has admitted that the cheque was issued for the amount of Rs. 27,360/- in respect of the credit transaction, it was obviously erroneous for the trial Court to say that the appellant has failed to establish that the cheque was not issued for the discharge of the liability of the amount of Rs. 27,360/-. That is much more so, when there is presumptions under sections 138 and 139 of the Negotiable Instruments Act in favour of the complainant and that presumptions are not rebutted by the accused. It is no doubt true that the presumptions can be rebutted. If that is so, then it was for the respondent to rebut the presumptions. It is true that in order to rebut the presumptions, it is not necessary in every case that the respondent should lead evidence. It is needless to say that the respondent can point out from the evidence on record that the presumptions to be drawn, are not rebutted. But, as stated in the earlier part of the judgment, the respondent has not done so. Therefore, admission of the respondent that the cheque was issued for the liability of an amount of Rs. It is needless to say that the respondent can point out from the evidence on record that the presumptions to be drawn, are not rebutted. But, as stated in the earlier part of the judgment, the respondent has not done so. Therefore, admission of the respondent that the cheque was issued for the liability of an amount of Rs. 27,360/- arising out of the credit transaction with the appellant's shop, and also of the fact that the cheque was dishonoured for want of sufficient funds, it has to be said that offence is proved. Therefore, the reasoning given by the trial Court for arriving at the finding of acquittal is absolutely perverse. Hence the respondent is found guilty of the offence under section 138 of the Negotiable Instruments Act, and he is liable to be convicted and sentenced for the said offence. Hence, in my opinion, interference by this Court in appeal is justified. Consequently, the appeal will have to be allowed and the judgment and order of acquittal will have tg be quashed and set aside. 10. It is, however, felt necessary to hear the respondent on the point of sentence, before sentencing him, in the interests of justice. The respondent is, therefore, directed to remain present in the Court on 22-11-2006 so that he can be heard on the point of sentence. 11. Pursuant to the above direction, the respondent remained present in the Court on 22-11-2006 and he is heard on the point of sentence. In his statement, he has stated that he is ready to make payment and claimed leniency. 12. The respondent is 62 years old today. Considering the nature . of offence, so also the present age of the respondent, I am of the opinion that as regards the substantive sentence, he is to be dealt with leniency. So, sentence of five days so also payment of fine of Rs. 60,000/- in default of payment of fine, further sentence of 15 days, and a direction of payment of an amount of Rs. 40,000/- out of the amount of fine of Rs. 60,000/- to the appellant/original complainant, would meet the ends of justice. Hence the order. The appeal is allowed. The respondent is convicted for the offence under section 138 of the Negotiable Instruments Act, and is sentenced to suffer simple imprisonment for five days and to pay a fine of Rs. 40,000/- out of the amount of fine of Rs. 60,000/- to the appellant/original complainant, would meet the ends of justice. Hence the order. The appeal is allowed. The respondent is convicted for the offence under section 138 of the Negotiable Instruments Act, and is sentenced to suffer simple imprisonment for five days and to pay a fine of Rs. 60,000/- in default to undergo further S.I. for fifteen days. It is further directed that out of the amount of fine, an amount of Rs. 40,000/- be paid to the appellant as compensation. 13. As requested by the learned counsel for the respondent, in order to facilitate the respondent to approach the Supreme Court, the substantive sentence is stayed for four weeks, subject to payment of amount of fine on or before 27-11-2006. Appeal allowed.