Judgment S.L. Kochar, J. : The appellant has preferred this appeal under Section 378 of the Cr.P.C. against the judgment dated 15.1.2001 rendered by the learned Judicial Magistrate, First Class, Indore in Cr. Case No. 210/99 whereby acquitting the appellant from the offence under Section 138 of the Negotiable Instruments Act (for short, the Act). 2. The appellant/complainant filed a criminal complaint against the respondent on 17.4.1999 for commission of offence under Section 138 of the Act and under Section 420 of the Indian Penal Code alleging that the respondent in a business transaction received Rs. 4,00,000/- on 1st December, 1998 from the appellant and issued post-dated cheques each of Rs. 1,00,000/- bearing Nos. 468535, 468537, 468538 and 468539 dated from 5.12.1998 to 5.3.1999, drawn on M.P. State Sahakari Bank, Indore. The respondent issued each cheque at an interval of one month and assured that on presentation in the Bank, the cheques would be honoured. The appellant presented those cheques in the Bank i.e. Bank of Rajasthan for encashment, but all the four cheques returned back from the concerned Bank with an endorsement of insufficient amount in the account on 24.3.1999. Appellant issued statutory notice dated 25.3.1999 which was served upon the respondent, but he, after receipt of notice, did not make any payment of the cheques amount within 15 days. Therefore, within the period of limitation, complaint was filed, wherein the appellant has prayed for conviction of the appellant and grant of compensation of double amount of the cheques. 3. Learned trial Court recorded the statement of the appellant under Section 200 of the Cr.P.C. and ordered for registration of complaint under Section 138 of the Act on 5.5.1999. The respondent appeared on 4.8.1999 and furnished bail bond and security bond for appearance before the trial Court. On 11.10.1999 particulars of offence were read over to the respondent. 4. The respondent denied the allegation levelled by the appellant. He did not examine any witness in defence. 5. The case was fixed for recording of the evidence of the complainant. Appellant examined himself and two witnesses i.e. CW-2 Laxman, Officer-in-charge of Rajasthan Bank and CW-3 Sajjansingh Rajput, Accountant of M.P. Rajya Sahakari Bank, Main Branch, Indore and adduced in all 11 documents in evidence. He did not examine any witness in defence. 5. The case was fixed for recording of the evidence of the complainant. Appellant examined himself and two witnesses i.e. CW-2 Laxman, Officer-in-charge of Rajasthan Bank and CW-3 Sajjansingh Rajput, Accountant of M.P. Rajya Sahakari Bank, Main Branch, Indore and adduced in all 11 documents in evidence. Learned trial Court, after hearing both the parties, passed the impugned judgment of acquittal of respondent on the ground that the cheques were not bearing the signatures of respondent and firm Lalchand Bhanwarlal Chaudhary was not impleaded as party and the person who issued cheques on behalf of the firm was also not made party in the case as well as appellant failed to prove his case beyond all reasonable doubt. 6. Learned Counsel for the appellant vehemently argued that if the firm was not made accused, the complaint cannot be dismissed when its partner is impleaded as accused and along with the firm the respondent was also the account holder in the Bank and that the appellant has proved all necessary ingredients of Section 138 of the Act beyond reasonable doubt. It is also submitted that there is presumption in favour of the appellant under Sections 118(a) and 139 of the Act, relying on Supreme Court judgments rendered in the case of R. Rajgopal v. S.S. Venkat, 2001 CriLJ 3936 and Anil Hada v. Indian Acrylic Ltd. 11(1999) BC 138 (SC) and S.M. Pharmaceuticals v. Neeta Bhalla, 2007(3) MPLJ 275, and the judgment rendered by this Court in Ramraj Singh v. State of M.P., 2003(1) JLJ 2271. 7. To combat with, learned Counsel for the respondent supported the impugned judgment and finding of the trial Court and submitted that the presumption under Sections 118(a) and 139 of the Act would be attracted only when initial burden of proving the case is discharged by the appellant/complainant. Learned Counsel has placed reliance on the Supreme Court judgment passed in the cases of M/s. Naramya Menon @ Mani v. State of Kerala and Another, (2006) 6 SCC 39 and Krishna Janardan v. Dattatraya, 2008(1) NIJ 210 (SC). 8. Learned Counsel has placed reliance on the Supreme Court judgment passed in the cases of M/s. Naramya Menon @ Mani v. State of Kerala and Another, (2006) 6 SCC 39 and Krishna Janardan v. Dattatraya, 2008(1) NIJ 210 (SC). 8. Having heard learned Counsel for the parties and after perusing the record, it emerged that the learned trial Court has passed the impugned judgment of acquittal of respondent mainly on the ground that Firm Lalchand Bhanwarlal Choudhary was not impleaded as party and the complainant failed to prove that the cheques were signed by the respondent as well as the signatures of the respondent are not tallying with the signatures available on cheques from Exs. P/1 to P/4. Learned trial Court compared the signatures of Anil Kumar available on Acknowledgement Due Ex. P/8 with the signatures made by him at the margin of Court's order-sheets. 9. This Court has gone through the complaint filed by the appellant before the trial Court and in the complaint, appellant has nowhere stated that Anil Kumar was the partner of M/s. Lalchand Bhanwarlal Choudhary. It is also not mentioned in the complaint that M/s. Lalchand Bhanwarlal Choudhary was a partnership firm and respondent was one of its partners. In the complaint, it is also not mentioned as to what kind of business transactions were there between the appellant and the respondent. The appellant, in his statement under Section 200 of the Cr.P.C. has also nowhere stated that the respondent Anil Kumar Jain was the partner of M/s. Lalchand Bhanwarlal Choudhary. He has not even taken the name of M/s. Lalchand Bhanwarlal Choudhary in his statement. 10. After registration of the complaint for the offence under Section 138 of the Act and appearance of the respondent before the trial Court, statement of the complainant/appellant was recorded on 21.1.2000 and in examination-in-chief, no- where he has stated that the respondent Anil Kumar was the partner of the firm M/s. Lalchand Bhanwarlal Choudhary. He has also not stated about existence of any kind of partnership firm in the name and style of M/s. Lalchand Bhanwarlal Choudhary. According to the appellant, respondent Anil Kumar was a contractor of M.P. Electricity Board and he was doing the business of sale of building materials i.e. Concrete/morum and sold the same to the respondent at the site of work going on at Power House of M.P.E.B. situated near Indore-Khandwa Road. According to the appellant, respondent Anil Kumar was a contractor of M.P. Electricity Board and he was doing the business of sale of building materials i.e. Concrete/morum and sold the same to the respondent at the site of work going on at Power House of M.P.E.B. situated near Indore-Khandwa Road. The respondent had taken contract of construction of road of M.P.E.B. In cross-examination para 6, he has admitted that he had not filed any bill for supply of material and he was also not able to give its number and date, because he was not maintaining any account. He has also admitted that he had not kept in writing any thing or any documents, therefore, he could not produce any document or the account book. In para 7 he has admitted about non-production of any receipt issued by the barrier regarding passing of truck. According to him, there was no procedure for preparation of any slip or receipt and he has also admitted that he had not filed any document to show that the respondent was a contractor of M.P.E.B . In para 10 the say of the complainant is that on all the four cheques from Exs. P/1 to P/4, at portion A to A name of respondent Anil was not mentioned, but a 11 the four cheques were gives to him by respondent Anil and he could not say as to who had written or filled-in the cheques. But, according to him, since the cheques; were given to him by respondent, therefore, the same were written by him. In para 12, he has deposed that his business was not of earning profit and he was filing Income Tax Returns without any account and was not having any account regarding cheques Exs. P/1 to P/4. In sum and substance, the appellant has admitted that he was not keeping any account regarding his business and he received all the four post-dated cheques at one point of time. He was confronted with the contents of para 1 of the complaint wherein it is not mentioned that he supplied any kind of building material to the respondent. He admitted non-mention of this fact and according; to him, he has mentioned at portion marked A to A only about business transaction between him and the respondent. He was confronted with the contents of para 1 of the complaint wherein it is not mentioned that he supplied any kind of building material to the respondent. He admitted non-mention of this fact and according; to him, he has mentioned at portion marked A to A only about business transaction between him and the respondent. In the opinion of this Court, the appellant has failed to explain this important omission in his complaint. In para 16, he has admitted that he had not sent any notice to Lalchand Bhanwarlal Choudhary and notice E-x., P/7 was sent to the respondent mentioning the name of Firm Lalchand Bhanwarlal. 11. This Court has perused the original cheques Exs. P/l to P/4 wherein nowhere words 'M/s. or Firm' are mentioned. Only name Lalchand. Bhanwarlal is written and on Exs. P/l, P/2, P/3, and P/4 at portions C to C and B to B respectively one signature is available, but that signature cannot be spelt the name of Anil Kumar Jain. The respondent has specifically denied signing these cheques as well as writing and signatures on the cheques. In view of the statement of the appellant/complainant Pankaj Gupta, it was not at all his case that his transaction was with the Firm M/s. Lalchand Bhanwarlal Choudhary and Respondent Anil Jain was one of its partners or proprietor. Therefore, the finding of the learned trial Court in para 17 of the impugned judgment regarding non-impleading the firm M/s. Lalchand Bhanwarlal Choudhary as one of the accused, is misconceived and not tenable. 12. So far as presence of signatures on all the four cheques is concerned, it is not the case of the appellant that the respondent signed on the cheques in his presence and this is true that the signatures available on the cheques are not tallying with the signatures of respondent Anil Kumar Jain available; on A.D. Card Ex. P8 as well as on the margin of Court order-sheets. Burden is upon the appellant to prove that the cheques were signed and issued by the respondent which he has failed to discharge beyond reasonable doubt. 13. In this view of the matter, the authority cited by the learned Counsel for the appellant as mentioned hereinabove, are not at all applicable in the case at hand. Burden is upon the appellant to prove that the cheques were signed and issued by the respondent which he has failed to discharge beyond reasonable doubt. 13. In this view of the matter, the authority cited by the learned Counsel for the appellant as mentioned hereinabove, are not at all applicable in the case at hand. In the case of Anil Hada (supra), the Supreme Court has held that without prosecution of company, prosecution of directors is not permissible. Same is the legal position decided by the Supreme Court in the case of R. Rajgopal (supra) and this Court in the case of Ram Raj Singh (ibid). In the case of SMS Pharmaceuticals (supra), the Division Bench of Supreme Court in para 19 pointed out necessary ingredients of Section 138 of the Act required to be proved by the complainant viz. (i) a cheque was issued; (ii) same was presented; (iii) but, it was dishonoured; (iv) a notice in terms of said provision was served on the person sought to be made liable; and (v) despite service of notice neither any payment was made nor other obligations, if any, were complied with to say within 15 days from the date of receipt of notice. There is no dispute about requirement of these five ingredients, but in the case at hand, very first ingredient issuance of cheque by the respondent has not been established beyond reasonable doubt by the appellant. 14. The Supreme Court in the case of M. Narayana Menon (supra) has specifically observed while interpreting provisions under Sections 118(a), 138 and 139 as under : “Presumptions both under Sections 118(a) and 139 of the Negotiable Instruments Act are rebuttable in nature. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words 'proved' and 'disproved' have been defined in Section 3 of the Evidence Act. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words 'proved' and 'disproved' have been defined in Section 3 of the Evidence Act. Applying the said definitions of 'proved' or 'disproved' to the principle behind Section 118(a) of the Negotiable Instruments Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant should be relied upon. It is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record, but also by reference to the circumstances upon which the accused relies. The accused need not disprove the prosecution case in its entirely. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with that on a defendant in a civil proceeding. Thus, it was for the accused only to discharge the initial onus of proof. He was not necessarily required to disprove the prosecution case. Whether in the given facts and circumstances of a case the initial burden has been discharged by an accused would be a question of fact. It is a matter relating to appreciation of evidence.” [Also see: Krishna Janardan Bhatt v. Dattatraya G. Hegde (supra)]. 15. As discussed hereinabove, the appellant has failed to prove beyond reasonable doubt that the cheques were signed by the respondent and also the cheques were given to him by respondent. It is also neither pleaded in the complaint nor stated in the statement by the complainant/appellant regarding existence of any partnership firm in the name and style of M/s. Lalchand Bhanwarlal Choudhary. 16. It is also neither pleaded in the complaint nor stated in the statement by the complainant/appellant regarding existence of any partnership firm in the name and style of M/s. Lalchand Bhanwarlal Choudhary. 16. CW-2 Laxman Sharma, Officer-in-charge of Rajasthan Bank has deposed only about presentation of cheques by the appellant in their Bank and he has admitted that he could not say about the account of the person who issued the cheques. This witness in para 5 has also stated that the Balance Sheet Ex. P.11 of the account of appellant Pankaj Gupta was showing entry of amount of more than Rs. 50,000/-. 17. CW-3 Sajjan Singh Rajput, Accountant of M.P. Rajya Sahakari Bank, Main Branch, Indore has deposed that in his Bank, there was account of Firm Lalchand Bhanwarlal and same account was in the name of A.K. Jain. This was the joint account and his Bank received all the four cheques which were returned back because of insufficiency of fund. In cross-examination, he has admitted that in all the four cheques name of respondent Anil Jain was not written and he expressed his inability to say whether all the four cheques were bearing signatures of respondent or not without tallying the same with specimen signatures available in the signature card kept in the Bank. He also expressed his inability to say regarding presence of signature of any partner of Firm Lalchand Bhanwarlal Chaudhary and deposed that signatory of the cheques would be considered as drawer of the cheque. At this juncture, in the opinion of this Court, the appellant has failed to establish that the respondent was the drawer of the cheques and when respondent denied presence of his signatures on the cheque in any capacity, the burden lies on the appellant to establish that the cheques were issued by the respondent. This Court also draws adverse inference against the appellant regarding not keeping of account of business transaction of supply of building material i.e. concrete and morum of such a big amount. If really he was dealing in that business, this cannot be only transaction with the respondent, but he must be having so many transactions with other persons and how he could do such a big business without keeping any account books. 18. Resultantly, for the foregoing reasons, this Court does not find any substance in this appeal. Therefore, the same is hereby dismissed. 18. Resultantly, for the foregoing reasons, this Court does not find any substance in this appeal. Therefore, the same is hereby dismissed. Office is directed to send a copy of this judgment to the trial Court along with its record. Appeal dismissed.