Judgment :- A.S. Pachhapure, J. The appellant has challenged the judgment and order of the acquittal of the respondents for the charge under Section 138 of Negotiable Instruments Act (herein after called as `the Act') on a trial held by the Additional Chief Metropolitan Magistrate, Bangalore City. 2. The facts relevant for the purpose of this appeal are as under: I will be referring to the parties as per the rank before the trial Court for the purpose of convenience. The appellant is the complainant and he filed the complaint under Section 200 Cr.P.C. against the respondents herein who are accused Nos. 1 and 2 before the trial Court and it is alleged that the complainant is a travel agent operating his business in the name and style M/s. Target tours and travels and in the usual course of business had issued tickets to accused No.1 represented by its proprietor -accused No.2 in all amounting to Rs.1,28,300/-. Towards discharge of this amount the accused No.1 had issued two cheques bearing No. 0724673 dated 22.3.1997 for Rs.28,500/-and cheque No. 0715218, dated 2.4.1997 for Rs.1,00,000/-drawn on State Bank of Bikaner and Jaipur at Bangalore duly signed by accused No.2 representing accused No. 1 as its proprietor. The appellant presented both the cheques through his bankers Mts. Vysya Bank, Bangalore upon instructions from the second accused and the said cheques were returned with an endorsement of insufficient funds as per the bankers memo dated 16.8.1997. The fact of dishonour of cheques was intimated to the complainant by the bankers on 19.8.1997. Thereafter, the complainant got the notice issued through his Counsel to both the accused on 19.8.1997 by registered post. The said notice addressed to the accused was sent by registered post on 21.8.1997 and it was served on the second accused. In the circumstances, it is the grievance of the complainant that the accused have failed to pay the amount of the cheques issued by them, despite the notice as required under the Act and that the accused have sent a reply which is untenable. In the circumstances, the complainant approached the trial Court requesting to take the action against the accused for the offence punishable under Section 138 of the Act. In the circumstances, the complainant approached the trial Court requesting to take the action against the accused for the offence punishable under Section 138 of the Act. In pursuance of the summons issued the accused appeared before the trial Court and on recording the plea the complainant examined T. Vijay as PW.1 and in his evidence the documents Exs. P.1 to P.13 were admitted. The statement of the accused were recorded under Section 313 of Cr.P.C. The accused have taken the defence of total denial and have not lead any evidence in defence. The trial Court on appreciation of the material on record and after hearing the Counsel, acquitted the accused. Aggrieved by the acquittal the complainant has approached this Court in appeal. 3. I have heard the learned Counsels for the appellant and the respondents. 4. The point that arise for my consideration is: .Whether the judgment and order of acquittal of the respondents for the charge under Section 138 of the Act is illegal and perverse? 5. It is the contention of the learned Counsel for the appellant that on the request of the accused No.1 through accused No. 2 the tickets were blocked and subsequently the tickets were purchased in the month of May 1997 and that towards the payment of the price of the ticket the accused No.1 issued the cheques for Rs.28,500% and Rs.1,00,000/-totaling the ticket amount of Rs.1,28,300/-. The evidence of PW.1 reveals regarding the issuance of cheques at Exs. P.1 and P.2, the endorsement of the Bank at Ex.P.3, the office copy of the notice at Ex.P.4, the postal acknowledgment -Ex.P.5, the postal receipt -Ex.P.6, the postal cover -Ex.P.7. So, as could be seen from these documents produced and the cheques issued by the accused, the learned Counsel contends that a presumption arise under Section 139 of the Act and that as the accused has not lead any rebuttal evidence and the issuance of the cheque has been admitted, he submits that this much of evidence is sufficient to order conviction of the respondents. 6. Now, as could be seen from the evidence that has been lead through PW.1, he states that as on 1.1.1997 an amount of Rs.1,28,300/-was due from the accused and during the course of his cross-examination he states that the accused have paid an amount of Rs.45,000/-on 12.5.1997 under receipt No. 2497, Rs.30,000/-and Rs.55,000/-on 15.5.1997 under receipt Nos. 6. Now, as could be seen from the evidence that has been lead through PW.1, he states that as on 1.1.1997 an amount of Rs.1,28,300/-was due from the accused and during the course of his cross-examination he states that the accused have paid an amount of Rs.45,000/-on 12.5.1997 under receipt No. 2497, Rs.30,000/-and Rs.55,000/-on 15.5.1997 under receipt Nos. 2969 and 2965 respectively. On verification of the accounts produced by the complainant, he admits with regard these payments on 12.5.1997 and 15.5.1997. The scrutiny of the evidence of PW.1 reveals with regard to the maintenance of accounts in respect of the transaction entered into between the complainant and the accused. But, there is no allegation in the complaint with regard to the maintenance of the accounts between the parties and it is borne out from the evidence of the complainant that the tickets were produced by the complainant in the month of May, 1997, whereas in the complaint it is his allegation that prior to the issuance of the cheques Exs. P.1 and P.2, the tickets were purchased and towards the total price of the tickets i.e., Rs.1,28,300/-the two cheques were issued by accused No.2. This version of the complainant as alleged in the complaint is contrary to what he states in his evidence as PW.1. Though, the tickets were purchased in the month of May 1997, the cheques were issued on 22.3.1997 and 2.4.1997 i.e., much prior to the purchase of the tickets. Thereby, as on the date when the cheques were issued there was no debt or liability, so far as the price of the tickets are concerned. The learned Counsel tried to explain that whenever an order is placed by the accused to purchase the tickets, the tickets will be blocked with the airport authorities and as a security the cheques will be taken and in due course of time when the tickets are issued the amount will be paid. Though, this version of the learned Counsel submitted before the Court finds a place in the evidence of PW.1 is contrary to what is alleged in the complaint. So, there is no consistency in the allegations made in the complaint and the evidence of PW.1 as far as the purchase of tickets are concerned. Though, this version of the learned Counsel submitted before the Court finds a place in the evidence of PW.1 is contrary to what is alleged in the complaint. So, there is no consistency in the allegations made in the complaint and the evidence of PW.1 as far as the purchase of tickets are concerned. Furthermore, Though the complainant had maintained accounts, he does not make any allegation in the complaint with regard to the maintenance of the accounts and the amount due as per the accounts and further the issuance of the cheques as per the debit entries made in the account books. In that view of the matter the evidence of PW.1 is inconsistent with the allegation in the complaint. In the circumstances, I do not think that the presumption can be raised under Section 139 of the Act as the allegations are not substantiated by the evidence of PW.1. 7. The learned Counsel for the appellant has relied upon the decision of the Hon'ble Apex Court reported in AIR 1998 SC 1406 (Central Bureau of Investigation Vs. V.C. Shukla and Others). As could be seen from the facts the spiral note book contained the monetary transaction i.e., the entries of receipt of money from certain persons on the left side of the page and payment to certain persons on the right side and the entries were totaled and the balance was duly reckoned. The evidence also discloses that the complainant was carrying on the business and the activities carried on continuously in an organised manner, with the purpose to augment one's own resources. The accounts were maintained in the regular course of business and it is on the basis of the entries made the finding of the existing debt was proved and in the said circumstance the Hon'ble Apex Court held that the accounts can be the basis for the proof of debt or liability. As could be seen from the allegations in the complaint the complainant has not made out any allegation with regard to the maintenance of the accounts and has not proved the entries as required and in the circumstances, I am of the opinion that the principles laid down do not apply to the facts on hand. 8. The learned Counsel has also relied upon the decision of this Court reported in 2007 Cri. L.J. page 586 (S. Parameshwarappa and Another Vs. Choodappa). 8. The learned Counsel has also relied upon the decision of this Court reported in 2007 Cri. L.J. page 586 (S. Parameshwarappa and Another Vs. Choodappa). The facts reveal that the accused company qua their letter acknowledged payment and also expressed their regret for inconvenience caused in repayment and they have decided to clear all amount due to complainant. In the circumstances, it was presumed that they have acknowledged to pay the debt much less a time barred debt and this Court held that it is a legally enforceable debt. The facts on hand disclose that on the date when the cheques were issued by the accused the tickets were purchased by the complainant and the purchase was made in the month of May 1997, subsequent to the issuance of the cheques. As on the date of the issuance of the cheque there was no debt or liability, so far as the price of the tickets are concerned. Thereby, the principles enunciated in the decisions referred to supra do not apply to the facts on hand. 9. The Counsel has also relied upon the decision reported in AIR 2006 Kant. 14 (Dr. Sampathkumar B.V. Vs. Ms. Dr. K. G. Lakshmi) wherein the cheque was issued as a security for repayment of the loan and it was held by this Court that it is not a ground to reject the complaint. It was also held that the accused did not lead the evidence to rebut the presumption under Section 139 of the Act with regard to the consideration and the accused were convicted. It is relevant to note that there is no allegation in the complaint that the cheques which were issued by the accused as a security for the price of the tickets, if such an allegation was made in the circumstances, I think the complainant could have succeeded in his case. In the absence of such an allegation I do not think that the decision of this Court would be applicable to the facts on hand. He also relied upon the decisions reported in ILR 2005 Kar. 3167 (M/s. Menon Ventures Vs. M/s. Birla 3M Limited), wherein it has been held by this Court that even a collateral security becomes a debt or liability on the part of the accused to perform the contract. He also relied upon the decisions reported in ILR 2005 Kar. 3167 (M/s. Menon Ventures Vs. M/s. Birla 3M Limited), wherein it has been held by this Court that even a collateral security becomes a debt or liability on the part of the accused to perform the contract. As there is no such allegation in the complaint, I do not think that the principles would apply here. 10. Though, the learned Counsel contended that the presumption which arises under Section 139 of the Act has not been rebutted and by cross-examination of the complainant, the accused can rebut the presumption. It is necessary for the complainant to prove the existence of debt or liability to raise a presumption in law. As there was no liability, so far as the price of the tickets are concerned as on the date when the cheques were issued, I do not think that the presumption can be raised under Section 139 of the Act. 11. There was no existing debt or liability, so far as the purchase of the tickets are concerned. So, these all circumstances were considered by the trial Court and on appreciation of the material on record placed by the complainant, the trial Court came to the conclusion that the complainant has not proved the requirements of Section 138 of the Act. The perusal of the allegations of complainant and the evidence lead by the complainant reveals inconsistency and this inconsistent version itself is sufficient to rebut the presumption. From whatsoever angle if the material on record is looked into, I do not think that the trial Court committed any illegality in passing the impugned order. In the circumstances, I answer the point in negative and proceed to pass the following. Order The appeal is dismissed. No costs.