JUDGMENT :- These are Complainant's appeals and are filed against Judgments of acquittal, of the learned J.M.F.C., Vasco-da-Gama, acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881 (Act for short). 2. As the facts are common, and the law applicable thereto is not different, the same are being disposed off by this common Judgment. 3. The subject matter of the complaints dismissed and the present appeals arising there from, are four cheques issued by the accused to the Complainant which were dishonoured and a demand notice having been sent by the Complainant, the same was replied to by the accused. The details of the said cheques are as follows : 1. Cheque No.404701 dated 7-8-1996 for Rs.50,00,000-00 2. Cheque No.404702 dated 7-8-1996 for Rs.50,00,000-00 3. Cheque No.404703 dated 7-8-1996 for Rs.50,00,000-00 4. Cheque No.404704 dated 7-8-1996 for Rs.62,39,996-00 4. The case of the Complainant as regards the first complaint was that the cheque of Rs.50,00,000/- given by the accused was towards a double payment made to the accused in the sum of Rs.55,19,112/-. The second and the third complaints were filed with the allegation that the cheque of Rs.50,00,000/- each were given to the Complainant towards payment received on account of a bogus invoice issued by the accused in the sum of Rs.97,50,000/-, and the fourth complaint was with the allegation that the said cheque was issued towards payment received by the accused towards thirty two invoices, seventeen having been issued by the accused-firm while fifteen having been issued by M/s. A. D. Steels. 5. The case of the accused as can be seen from the reply sent as well as the statement under Section 313 recorded is that the accused had given four blank cheques to the Complainant, of the same date, duly signed, and the said cheques were given to the Complainant as they were in financial difficulties and to assist the Complainant financially as their relations were good. The case of the accused was that they did not have any debt or liability towards the Complainant. It was stated that a reply was sent and whatever was stated in the said reply was true and that the Complainant, after five months later, after the date shown on the cheques, deposited the same and thereafter filed a false complaint. 6. It was stated that a reply was sent and whatever was stated in the said reply was true and that the Complainant, after five months later, after the date shown on the cheques, deposited the same and thereafter filed a false complaint. 6. On behalf of the Complainant, Shri. Sequeira, the Complainant's company secretary, and a Bank Branch Manager were examined. The accused did not examine any witness. The said Branch Manager was examined to show that the cheques issued by the accused in favour of the Complainant were dishonoured. However, in cross-examination, it was elicited from him, by the accused, that a cheque dated 31-3-1996 for a sum of Rs.55,19,112/- issued by the Complainant to Janata Sahakari Bank Ltd. was dishonoured. An admission was also obtained from the Complainant's company secretary that another cheque dated 4-12-1995 for the same amount was also dishonoured, issued in favour of the same Bank. It was also admitted on behalf of the Complainant that at the relevant time the Complainant was having lean business. 7. The learned trial Court observed, with reference to the evidence of the said Sequeira, that he was miserably shaken on all material counts, and the very foundation of the complaint was weak in nature and rested on inconsistent stands having no support of any documentary evidence. The learned trial Court also observed that the Complainant had not produced any document or correspondence to show that the Complainant had made double payment to the accused. The learned trial Court stated that the Complainant had not produced the Bank statements, accounts, showing the alleged payment being made on two occasions to the accused and the Complainant had also not produced the statement in respect of payment by cheque of a sum of Rs.97 ,50,000/ -. Referring to the evidence of the Complainant's witness, the learned J.M.F.C. noted that he had admitted in cross-examination that there was no entry made either in respect of the double payment of Rs.55,19,112/- or Rs.97,50,000/- to the accused or any other person. As regards the non-examination of the accused, the learned J.M.F.C. noted that merely because the accused had not examined himself, did not mean that he had not succeeded in establishing his case. As regards the non-examination of the accused, the learned J.M.F.C. noted that merely because the accused had not examined himself, did not mean that he had not succeeded in establishing his case. The learned Magistrate also observed that the Complainant had failed to prove its case against the accused as the case of the Complainant was not supported by any documentary evidence nor was there any support in the testimony of PW-2, to establish the guilt of the accused under Section 138 of the Act. 8. Shri. V. Rodrigues, learned Counsel appearing on behalf of the Appellant! Complainant submits that the Complainant is a public limited company and there is no clear indication on the part of the accused as to why four blank cheques were given by the accused to the Complainant inasmuch as it was also not mentioned by the accused as to whom the four blank cheques were given. Learned Counsel further submits that in case four blank cheques given by the accused were misused by the Complainant it was expected from the accused to file a police complaint or at least issue stop payment instructions. Learned Counsel further submits that the accused had given cheques which are duly signed, and as such the Complainant had a presumption in its favour that they were given in favour of a debt or liability and this presumption could have been rebutted by the accused by entering into the witness box. Referring to para 7(a) of the reply of the accused, learned Counsel submits that in case the said cheques were issued towards the four bills of exchange mentioned earlier, collectively amounting to Rs.3,20,95,096/- there was no explanation as to why they were four in number and had to be given in blank. As regards the carbon copy produced by the accused to show that the cheques were issued in blank, learned Counsel submits that a carbon copy is a copy of the accused and he could have created the same at any time, by filling the necessary details. Learned Counsel further submits that the two cheques issued by the Complainant to the Janata Sahakari Bank Ltd., and which were dishonoured is an internal matter between the Complainant and the said Bank as the said Bank had extended credit facilities to the Complainant and have nothing to do with the present transaction in which the accused had received his money. 9. On the other hand, Shri. K. M. Irani, learned Counsel appearing on behalf of the Respondents/Accused has submitted that the accused has proved with the production of the carbon copy which according to the learned Counsel is primary evidence, the plea taken by the accused that the cheques were issued in blank. Learned Counsel further submits that if the carbon copies are compared with the originals of any of the cheques issued by the accused and produced by the accused there can be no manner of doubt that they were prepared at the same time when the original was issued. Learned Counsel further submits that the Complainant has admitted that one of the cheques dated 4-12-1995 in the sum of Rs.55, 19, 112/- issued by the Complainant to Janata Sahakari Bank Ltd. has been dishonoured. Learned Counsel further submits that the complainant failed to prove that there was any double payment. He further submits that the so-called invoice bearing No.162 in the sum of Rs.97,50,000/- was neither produced nor proved by the Complainant. Learned Counsel further submits that none of the bills of exchange which are said to have been discounted twice were produced by the Complainant. However, Shri. V. Rodrigues, learned Counsel on behalf of the Complainant submits that one of the bills dated 5-9-1995 was produced. 10. There is no dispute that the Complainant is a public limited company whose Managing Director was one Commander S. S. Singh and the accused No.1 is a firm of which accused No.2 (Respondent No.2 herein) was the Managing Partner. (No leave to appeal was granted against accused No.3, the wife of accused No.2). The accused-firm was a regular supplier of steel to the Complainant-Company. Relations between the Complainant-Company and the accused-firm were strained from September, 1996 and as a result M/s. G. S. Shukla, Chartered Accountants, Pune, were asked to scrutinize and reconcile the accounts of A. D. Steel and Deekay Steel (Respondent No.1 herein) with the Complainant-Company, and as a result of the said scrutiny the said Chartered Accountants had opined that Deekay Steel(accused-firm) was owing a sum of Rs.25,00,771/- to the Complainant while A. D. Steel had to pay Rs.78,00,216/- to the Complainant. The letter dated 25-10-1996 to that effect written by the Commander S. S. Singh to the Managing Director of Janata Sahakari Bank Ltd. was proved by the accused through the said Sequeira. 11. The letter dated 25-10-1996 to that effect written by the Commander S. S. Singh to the Managing Director of Janata Sahakari Bank Ltd. was proved by the accused through the said Sequeira. 11. As already stated, the Complainant examined its Company secretary who, to begin with, stated that all the four complaints were filed based on knowledge derived by him from the records and documents of the Complainant. Later, he admitted that he was only a Company secretary and was not connected with sales or purchases department personally and he did not have any transaction with the Company. However, a perusal of his cross-examination clearly shows that the 'only knowledge he has is that the subject cheques were received in the Accounts Department of his Company and admittedly none from the said Department were examined on behalf of the Complainant to explain under what circumstances the said cheques were given by the accused. Although, Shri. Sequeira claims to be the Complainant's Company secretary, he even went to the extent of stating that he was not aware of banking procedure when he was particularly questioned that towards the two bills of exchange, cheques were also given to effect payment. In fact, the cross-examination of Shri. Sequeira conceals more facts than reveals the facts relating to the transaction either on purpose or lack of knowledge. When questioned about the dishonour of cheques issued to the Janata Sahakari Bank Ltd., he stated that he did not have the facts with him. When he was questioned about the blank cheques having been given by the accused, in one breath he admitted that the contents of the cheques were written by Janardan/Accused No.2 but in another breath he stated that the cheques were not filled in his presence nor signed in his presence. He again stated that he could not say whether it was written or signed by the accused or not. When questioned further as regards the double payment of Rs.55,19,112/- towards which the payment of the first cheque is alleged to have been issued, he stated that he did not remember the mode of payment whether it was made by cheque or by cash and although he sought time to explain about the said payment, the fact remains that he never did the same. When he was questioned about the absence of averment of double payment having been made to the accused either in the statutory notice or in the complaint filed by him, first he stated that it was mentioned in the notice but when his attention was drawn to the notice he stated that there was no such mention. Needless to say that the story of double payment is a story subsequently made up on behalf of the Complainant, which was absent in the notice. Regarding the letter dated 25-10-1996 shown to him, Shri\Sequeira admitted that the same was signed by the Managing Director of the Complainant, namely Commander S. S. Singh (i.e. Exh.107). He further admitted that after the receipt of the said letter dated 25-10-1996 he did not make any inquiry with the Commander S. S. Singh in respect of the said letter dated 25-10-1996. He admitted that Commander S. S. Singh had admitted that the company had appointed Shri. G. S. Shukla, Chartered Accountant to examine and scrutinize the accounts of the accused-firm with that of the Complainant-company and he further admitted that in the said letter it was shown that the firm of the accused was liable to pay a sum of Rs.25,00,771/-. As regards the carbon copy of the subject cheques shown to him he admitted that the carbon copy does not have the amount in words or figures. It does not require a discerning eye to see that the original cheques when compared with the carbon copies maintained by the accused that one is the carbon copy of the other, and it may be noted that these carbon copies retained by the accused are not only in relation to the four cheques in dispute but also others and this would substantiate the plea of the accused that blank cheques were given by him. Considering complainant's evidence, it is quite clear that the accused had proved by balance of probabilities that the cheques issued by him were blank and had further proved with letter dated 25-10-1996 that his liability if at all was limited to Rs.25,00,771/-, and not to the extent reflected by the four cheques, subject matter of four complaints. 12. Considering complainant's evidence, it is quite clear that the accused had proved by balance of probabilities that the cheques issued by him were blank and had further proved with letter dated 25-10-1996 that his liability if at all was limited to Rs.25,00,771/-, and not to the extent reflected by the four cheques, subject matter of four complaints. 12. As regards the presumption available to the Complainant in terms of Section 118 as well as Section 139 of the Act, the law is well settled that they are mandatory in, nature, firstly, as regards passing for consideration, and, secondly that the holder of the cheque received the same in discharge or in part of any debt or liability but at the same time they are rebuttable by the accused, and this rebuttal can be established on the basis of evidence brought in by the Complainant or by the accused leading evidence of his own and the standard of proof of rebutting the presumption being that of balance of probabilities which is a standard applicable to the accused whenever the accused is required to prove a fact. It is not at all necessary for the accused to enter the witness box. Whether a presumption of law or fact stands rebutted by the evidence or other material on record is one of fact and not of law. and this is the view of the Constitution Bench of the Apex Court in the case of Dhanwantrai Balwantrai Desai Vs. State of Maharashtra (AIR 1964 SC 557). A similar view was followed by the Apex Court in Hiten P. Dalal Vs. Bratindranath Banerjee (2001)6 SCC 16 ). The Apex Court in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal ( AIR 1999 SC 1008 ) as well as in M. S. Narayana Menon Vs. State of Kerala (2006)3 SCC (Cri.) 30) has held that the defendant can prove the non existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The view held in Krishna Janardhan Bhat Vs. Dattatraya G. Hegde «2008)4 SCC 54) is not different, and in fact the Hon'ble Supreme Court has cautioned the Courts that merely on an application of presumption as contemplated under Section 139 of the Act it should not lead to injustice or mistaken conviction. 13. The accused having rebutted the presumption, it was for the Complainant to prove that there was a debt or liability to the extent claimed by the Complainant. It appears that at one stage the said Sequeira came with a statement of accounts and produced the same but did not examine its author or the person who had prepared the same. Learned Counsel on behalf of the Complainant has drawn my attention to page 138 of the paper book in Criminal Appeal No.40 of 2007 and has submitted that the accused had a liability towards the Complainant in the sum of Rs.97.50,000/-. However, what is mentioned therein is that the same is an entry which has been shown towards bills payable, apart from the fact that the author of the said statement has not been examined nor any other person examined. The Complainant also did not produce its books of accounts (0 show that in fact a sum of Rs.97,50,000/- was paid towards invoice No.162 inasmuch as the said invoice was also not produced. In fact, the complainant’s witness was questioned on this aspect also. First, apart from admitting that the Complainant had not produced any document in support of their claim of over payment of Rs.55,19,112/- to the accused he also stated that he could not positively say that the payments have been made to the accused in respect of the transaction. He further stated that there were several people who were in charge of the Accounts Department, Store Department, who were involved in the preparation of proforma invoice 162. At the end of the cross-examination on that aspect he conceded that no departmental action was taken against any of the employees and further conceded that he was not aware whether there were any exchange of letters between the employees and the company with respect of transaction involving the double payment. In case the accused had raised a fraudulent invoice bearing No.162 to the extent of Rs.97,50,000/-, and the same was passed for payment then certainly the complainant would have taken some action against the employees involved. In case the accused had raised a fraudulent invoice bearing No.162 to the extent of Rs.97,50,000/-, and the same was passed for payment then certainly the complainant would have taken some action against the employees involved. 14. Considering the nature of evidence produced on behalf of' the Complainant, this is not only a case where the accused has successfully rebutted the presumption available to the Complainant in terms of the relevant provisions of the Act but the Complainant also failed to prove that there was any case of double payment in the sum of Rs.55, 19,112/- or payment on account of fraudulent invoice in the sum of Rs.97,50,000/- or for that matter in the sum of Rs.62,39,996/-. 15. That being the position, in my view, I find there is no merit in these appeals and consequently the same are hereby dismissed with costs of Rs.5,000/- in each of the appeals, to be paid by the Complainant to the accused (A-l and A-2). Appeals dismissed.