JUDGMENT Huluvadi G. Ramesh , J.—These appeals are by the aggrieved complainant assailing the orders of the XII Addl. CMM, Bangalore passed in CC 1858/2006; CC 7380/2006; 23548/2005; CC 1860/2006; CC 1861/2006; CC 1859/2006 and CC 7378/2006, on 2.8.2010. 2. Complaints came to be registered against the accused for the offence punishable under S. 138 of the Negotiable Instruments Act. It is stated, the 2nd accused is the Managing Director and 3rd accused is the Director of the 1st accused company. The accused are none other than the relatives of the complainant. According to the complainant, out of relationship, the accused had borrowed an amount of Rs. 45 lakhs from her and towards discharge of the said liability, they had issued cheques for different amount. Out of the said cheques, the cheques bearing Nos.164590 dated 10.5.2005 for Rs. 50,000/-; 164591 dated 10.6.2005 for Rs. 50,000/-; 164592 dated 10.7.2005 for Rs. 50,000/- and 164593 dated 10.8.2005 for Rs. 50,000/-; 164588 dated 10.3.2005 for Rs. 50,000/-; 237992 dated 30.3.2005 for Rs. 2,83,522/-; 237993 dated 30.4.2005 for Rs. 2,83,522/-, 237989 dated 30.12.2004 for Rs. 2,83,522/-; 237994 dated 30.5.2005 for Rs. 2,83,522/-; 237995 dated 30.6.2005 for Rs. 2,83,522/-; 237996 dated 30.7.2005 for Rs. 2,83,522 and 237997 dated 30.8.2005 for Rs. 2,83,522/- drawn on HDFC Bank, R. T. Nagar Branch, Bangalore, when presented for realization through her banker, were dishonoured. After issuance of legal notice, since payment was not made, complaints came to be filed. 3. According to the complainant, during the period from 2002-04, the amounts were lent having borrowed the same from her husband. She has stated, she is an income tax assessee and her husband is also doing business. However, according to the accused, these cheques were stolen misusing the relationship. After hearing the parties, after inquiry, the trial court dismissed the complaints. 4. Prior to this, it appears there is an order of conviction rendered by the trial court against which in the appeal filed, the order of the trial court was set aside and the matter was remanded by this Court for fresh consideration. On such fresh consideration, the trial court has dismissed the complaints. Hence, these appeals. 5. 4. Prior to this, it appears there is an order of conviction rendered by the trial court against which in the appeal filed, the order of the trial court was set aside and the matter was remanded by this Court for fresh consideration. On such fresh consideration, the trial court has dismissed the complaints. Hence, these appeals. 5. The reasoning given by the trial court is, the entire evidence let in by the parties depict that there is a financial transaction and it is for the complainant to substantiate as to how much amount was lent to the accused, but, according to the accused, he has repaid the amount and also these cheques were issued only as security and also observing that the transaction is civil in nature, has dismissed the complaint. 6. Heard the counsel representing the parties. 7. According to the complainant, throughout the proceedings out of relationship certain transactions have taken place which depicts that it is not only a presumption but, there is also an admission on the part of the accused that there were transactions and also there was an agreement seeking for extension of time to make payment in installments by the accused themselves. Subsequently, they are retracting as the complainant did not agree to collect the amount in part/installments. Ultimately, in the first round of litigation, accused were convicted and thereafter, were acquitted without reference to certain of the transactions which are in existence and also regarding the admissions. Even though an application was filed by the accused under S. 293 Cr. P. C. contending that the cheques were stolen and signature is forged, different stand was taken at different times and against the rejection of the application filed under S. 293, Cr. P. C., no appeal or revision has been preferred and that the cheques were issued towards legally enforceable debt. Even assuming that cheques were issued towards security as contended, as per the decision of this Court, necessarily it has to be treated as issued towards legally enforceable debt. Accordingly, in support of his argument, learned counsel has relied upon the case of Dr. Sampath Kumar v. Dr. Even assuming that cheques were issued towards security as contended, as per the decision of this Court, necessarily it has to be treated as issued towards legally enforceable debt. Accordingly, in support of his argument, learned counsel has relied upon the case of Dr. Sampath Kumar v. Dr. K. G. V. Lakshmi, 2006 Cri LJ 2267 : (AIR 2006 SC 848 (NOC)) to contend that when the cheque is issued as security, it has to be treated as one issued towards legally enforceable debt and on that ground the complaint cannot be dismissed. 8. Learned counsel has also relied upon another decision in the case of Smt Uma Swamy v. K N. Ramanath, 2006 Cri LJ 3760 : (AIR 2006 Kar 1420 (NOC)) to contend that even if the cheque is issued as security for payment, it is a negotiable instrument and an encashable security at the hands of the payee. Merely because it is issued, as security is no ground to exonerate the penal liability under S. 138 of the Act. 9. Further, relying upon the case of Rangappa v. Mohan, AIR 2010 SC 1898 : (2010 AIR SCW 2946), learned counsel contended that as per S. 139 of the Act, presumption that the cheque was issued towards a legally enforceable debt has to be rebutted by the accused as a negative onus not only by offering explanation but, proof of explanation has to be offered. Learned counsel has also relied on several other decisions to stand by his contention that the trial court has proceeded on the basis that the complainant has not established the case against the accused beyond doubt and accordingly submitted, cheques were issued towards legally enforceable debt and neither it is stolen nor there is forgery. Even the signature on the cheques are not in dispute. 10. According to the learned Sr. Counsel representing the respondents, the primary burden has not been discharged by the complainant and out of relationship between the parties, these cheques were stolen by the complainant. The complainant has not produced any proof of income, as per the finding of the trial court; no details are forthcoming as to the quantum of amount paid and the dates on which the amount was paid and, it is only a false complaint filed by the complainant taking advantage of the cheques which were stolen. The complainant has not produced any proof of income, as per the finding of the trial court; no details are forthcoming as to the quantum of amount paid and the dates on which the amount was paid and, it is only a false complaint filed by the complainant taking advantage of the cheques which were stolen. In the absence of any material placed on record as to the entitlement and the amount lent by the complainant to the accused, the trial court has rightly dismissed the complaint. Accordingly, in support of his argument, learned counsel has relied upon the decision in the case of Gopala Krishna Ketkar v. Mohamed Haji Latif & Ors, AIR 1968 SC 1418 to contend that if a party in possession of best evidence which would throw light on the issue in controversy withholds the same, adverse inference has to be drawn notwithstanding the onus of proof does not lie on him. It is also contended, relying upon the observation in the case of M. S. Narayana Menon v. State of Kerala & Another, (2006) 6 SCC 39 : ( AIR 2006 SC 3366 ) that, to rebut the presumption what is needed is to raise a probable defence. 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. It is also contended, relying upon the case of M Seguttuvan v. Mahadevaswamy, IV (2007) BC 708 that, presumption is a rebuttable one and it need not be rebutted only by leading evidence, it can even be rebutted on the basis of facts elicited in the cross-examination. Thus, contending that the complainant failed to discharge his burden to hold the accused guilty of the offence, learned Sr. Counsel has sought for dismissal of these appeals. 11. In the light of the arguments advanced, let me consider whether — The trial court has committed any irregularity or illegality in opining that the case is civil in nature and directing the parties to approach the civil court; The order of the trial court is legally sustainable; and, The complaints filed by the complainant deserve to be allowed. 12. According to the complainant, out of relationship, accused have borrowed Rs. 45 lakhs on different occasions, and towards discharge of the said liability, they had issued cheques in different amount. 12. According to the complainant, out of relationship, accused have borrowed Rs. 45 lakhs on different occasions, and towards discharge of the said liability, they had issued cheques in different amount. In these set of appeals, the cheques amounting to Rs. 22,34,654/- have been dishonored. The reasoning given by the trial court is, the complainant could not memories the exact dates of lending amount to the accused and she has stated that the amount was lent to the accused through bank transactions and through cash also and that, she has also got documents in support of the same. Further, referring to the admissions in the cross-examination that she had no income of her own and rather her husband is doing business and also she is an income tax assessee having a savings bank account and also noting that she has got several cheques i.e., 28 cheques issued by the accused and out of them she has got ten blank cheques and the other eighteen cheques are for Rs. 28 lakhs and further noting that the complainant has taken the blank cheques but has not produced any document to show that she had lent loan through bank transactions and also according to her evidence, her husband has got sufficient income but, she has not produced any document to show such source of income and her husband is also not examined, throwing the entire burden on the complainant as to capacity, relying upon the judgment of the Apex Court, the trial court has dismissed the complaints. 13. It is the argument of the appellant that so far as production of documents is concerned, when there is a specific admission on the part of the accused himself as to paying the amount in installments for which the complainant was not agreeable, at that juncture, differences arose and ultimately cases were filed. A clear admission is there on the part of the accused where it is submitted and also recorded in the Order Sheet before the Trial Court to the effect that, accused had agreed to pay the amount in forty five installments for which complainant was not agreeable and, that admission itself is sufficient and there need not be any proof of admission. According to the learned counsel, as per the ratio laid down in Rangappas case noted supra, the presumption mandated by S. 139 of the Negotiable Instruments Act does, indeed include the existence of legally enforceable debt or liability. This of course, is in the nature of rebuttable presumption and it is open to the accused to raise a defence wherein the existence of legally enforceable debt or liability can be contested and initial presumption is in favour of the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of a negotiable instrument. S. 139 of the Act specifies a strong criminal remedy in relation to dishonour of the cheques. The rebuttable presumption under S. 139 is a device to prevent undue delay in the course of litigation. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S. 139, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. 14. The law laid down by the Apex Court in Krishna Janardhana Bhat's case to the effect that it is the burden on the complainant to establish the fact that he had lent loan to the accused has been negated in Rangappa's case ( AIR 2010 SC 1898 ) and rather, it has been held that there is always a presumption that the cheque was issued towards a legally enforceable debt and of course, it may be rebutted, by some probable explanation and proof of explanation is also necessary. What is not in dispute is, the accused as well as the complainant are relatives i.e., complainant is the niece of the 2nd accused and 3rd accused is the wife of the 2nd accused. What is not in dispute is, the accused as well as the complainant are relatives i.e., complainant is the niece of the 2nd accused and 3rd accused is the wife of the 2nd accused. What is also not in dispute is, the complaint filed under S. 293, Cr. P. C. by the accused seeking for getting the signature on the cheque verified, has been dismissed by the trial court. Of course, according to the submission made by the counsel for the accused, that application came to be rejected only on the ground that such application would be considered after the evidence is let in. 15. What is pertinent to note is, in the order nothing has been stated as to the genuiness of the signature much less on any of the allegation made by the accused that the cheques were stolen and the signatures were forged. According to the accused, all the cheques were got, signed for the purpose of transaction as he used to be away from the place of business and that has been misused by the complainant. 16. In the order dated 12.7.2007 i.e., the Order Sheet maintained by the court, it is noted the counsel for the accused is said to have made a specific submission that so far as these seven cases are concerned, the accused is ready to settle the amount in forty installments for which the complainant is not agreeable. 17. Ex.P11 is said to be the letter in the form of an undertaking by the accused. Of course, the issuance of the letter has been disputed. Even assuming that such a letter is forged or stolen, nothing has been mentioned in the order as to its veracity is concerned. However, the specific order noted in the order sheet, on such submission through the counsel, is nothing but an admission. In the circumstances, proof of payment of amount by the complainant to the accused and production of certain documents may not be necessary in the context that such submission/admission is made way back in the year 2007, almost three years prior to this case being taken before this court and sufficient time has been gained by the accused. 18. In the circumstances, proof of payment of amount by the complainant to the accused and production of certain documents may not be necessary in the context that such submission/admission is made way back in the year 2007, almost three years prior to this case being taken before this court and sufficient time has been gained by the accused. 18. In the circumstances, in view of the specific admission and nothing has been stated as to the very document by the trial court i.e., the counsel for the respondents stating that the document is not genuine and that it is forged, such a submission cannot be accepted and, the accused have to be held guilty of the offence. 19. Accordingly, appeals are allowed. Impugned orders are set aside. The accused are directed to pay the amount as per Ex. P11, insofar as these cases are concerned, within four months failing which, they have to undergo simple imprisonment for six months. 20. Appeals allowed.