Judgment :- The Criminal Appeals have been filed by the complainants against the judgments of acquittal, dated 13.11.2002 and 5.1.2006 in C.C.Nos.3726 and 3727 of 2001 respectively, on the file of the IInd Metropolitan Magistrates Court, Egmore, Chennai, whereby, the respondent-accused was acquitted of the charge under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). 2. The appellants have filed the complaints under Section 138 of the N.I. Act against the respondent-accused. The case of the complainants, which is common in both the cases, is as follows: The appellants-complainants in both the cases are husband and wife. The appellants-complainants entered into a memorandum of agreement with the brother-in-law of the respondent-accused, on 9.12.1996 in respect of construction of a house and a supplementary agreement also came into existence. Since there was defect in service, the appellants-complainants have filed O.P.No.32 of 1998 before the State Consumer Disputes Redressal Commission, Chennai, wherein, a joint memo was filed on 24.11.1998 and in pursuance of the same, order was passed on the same day. Since the terms specified in the joint memo were not complied with, the Execution Petition was filed by the appellants-complainants. In the said E.P., Mohammed Yaseen, the brother-in-law of the respondent-accused, was sentenced to undergo rigorous imprisonment for two years. Against that, Mohammed Yaseen preferred a Civil Revision Petition in C.R.P.No.3429 of 2000, before this Court and also a petition for bail. In the said Civil Revision Petition, a compromise was entered and Mohammed Yaseen offered to give Rs.14,50,000/- in full and final settlement. In pursuance of the same, memorandum of agreement was entered on 4.12.2000, and Rs.1,50,000/- was paid by way of Demand Draft and receipt has been issued and for payment of Rs.13 lakhs, two post-dated cheques each, dated 5.2.2001, for Rs.6,50,000/-, were issued, one in the name of the appellant in Crl.A.No.325 of 2003 and another, in the name of the appellant in Crl.A.No.148 of 2006. When the cheques were presented, they were returned with return memo by the Bank and a debit advice was also received from the Bank. Notice had been issued by the appellants-complainants on the respondent-accused and the acknowledgement was also received by the respondent-accused. The respondent-accused neither paid the amount, nor sent a reply. Hence, the appellants have filed two separate complaints. 3. Notice had been issued by the appellants-complainants on the respondent-accused and the acknowledgement was also received by the respondent-accused. The respondent-accused neither paid the amount, nor sent a reply. Hence, the appellants have filed two separate complaints. 3. After following the formalities, the trial Court questioned the respondent-accused, and he pleaded not guilty. During the course of trial, in Crl.A.No.325 of 2003 pertaining to C.C.No.3726 of 2001, P.Ws.1 to 3 and D.Ws.1 to 3 were examined and Exs.P-1 to P-14 were marked; during the course of trial, in Crl.A.No.148 of 2006 pertaining to C.C.No.3727 of 2001), P.W.1 and D.Ws.1 and 2 were examined and Exs.P-1 to P-14 and Ex.D-1 were marked. On the basis of the oral and documentary evidence, the trial Court dismissed the complaints and the respondent-accused was acquitted of the charge, as indicated above. 4. Challenging the judgments of acquittal, learned Senior Counsel appearing for the appellants-complainants would contend that the trial Court dismissed the complaints stating that there is no subsisting liability on the date of issuance of the cheques and in pursuance of the memorandum of agreement entered on 4.12.2000, the respondent-accused issued two cheques, each for Rs.6,50,000/-, in favour of the respective appellants-complainants. As per Sections 118 and 139 of the Negotiable Instruments Act, the presumption is to be drawn. Learned Senior Counsel appearing for the appellants-complainants relied upon the decision of the Supreme Court reported in 2002 (6) SCC 426 (ICDS Ltd. Vs. Beena Shabeer) and submitted that the cheques were issued in respect of guarantee and if the cheques were bounced, it is an offence under Section 138 of the N.I. Act. Learned Senior Counsel for the appellants-complainants also relied upon the decision of the Supreme Court reported in 2001 (6) SCC 16 (Hiten P.Dalal Vs. Bratindranath Banerjee) for "presumption" under Sections 118 and 139 of the Negotiable Instruments Act. He further submitted that the trial Court has not considered the same. The presumption is in favour of the appellants-complainants. Even though the respondent-accused pleaded presumption, the trial Court has come to the conclusion that the amounts have been deposited, but for the discharge, the respondent-accused has not filed any document, for payment of Rs.13 lakhs in cash. There is no reason as to why the respondent-accused has not taken back the cheques. Even though the respondent-accused pleaded presumption, the trial Court has come to the conclusion that the amounts have been deposited, but for the discharge, the respondent-accused has not filed any document, for payment of Rs.13 lakhs in cash. There is no reason as to why the respondent-accused has not taken back the cheques. The respondent-accused has not given any notice to the Bank for stop payment and he has not given any invoice to the complaints for return of the cheques and after the cheques have been bounced, the appellants-complainants issued notice on 14.3.2001, but no reply has been issued by the respondent-accused. Furthermore, the respondent-accused filed a petition under Section 309 Cr.P.C. for adjournment and in that, he has stated that he wanted the adjournment to settle the entire amount in the last week of May 2002. So, these facts clearly prove that the cheques for Rs.13 lakhs (Rs.6,50,000/-each) have not been discharged and the trial Court has not considered this aspect in proper perspective. Hence, he prayed for allowing the Criminal Appeals. 5. Per contra, learned Senior Counsel appearing for the respondent-accused would lay his hand only on one issue, stating that the cheques have been issued and after the issuance of the cheques, the amounts have been discharged. Learned Senior Counsel appearing for the respondent-accused relied upon an affidavit filed in C.R.P.3429 of 2000 and he culled out the evidence of P.W.1 and D.W.1. He further submitted that as per the evidence of D.Ws.1, 2 and 3, the amounts have been paid in the office of Mr.Venkatavaradhan, Advocate, who was the counsel for the complainants, but he stated that non-examination of Mr.Venkatavaradhan, Advocate, is fatal to the case. Learned Senior Counsel for the respondent-accused also relied upon the decision reported in 2008 (1) SCC 258 (K.Prakashan Vs. P.K.Surenderan) in support of his contentions. He further submitted that there is no infirmity or illegality in the impugned judgments of acquittal and prayed for dismissal of the Criminal Appeals. 6. The admitted facts which are relevant for the disposal of the appeals are as follows: The appellant in Crl.A.No.325 of 2003 is the wife of the appellant in Crl.A.No.148 of 2006. She executed a Power of Attorney Deed in favour of her husband. The memorandum of agreement and supplementary agreement, dated 9.12.1996, were executed. 6. The admitted facts which are relevant for the disposal of the appeals are as follows: The appellant in Crl.A.No.325 of 2003 is the wife of the appellant in Crl.A.No.148 of 2006. She executed a Power of Attorney Deed in favour of her husband. The memorandum of agreement and supplementary agreement, dated 9.12.1996, were executed. In pursuance of the same, the respondent herein has not complied with the terms of agreement and hence, the appellants-complainants were forced to file a petition before the State Consumer Disputes Redressal Forum. On 24.11.1998, they compromised the matter and a joint memo was filed. That has been marked as Exs.P-3 and 4, respectively in the cases before the trial Court. In pursuance of Exs.P-3 and P-4, the order was passed as per Exs.P-4 and P-5 respectively. Mohammed Yaseen, the brother-in-law of the respondent-accused, has not complied with the order of the Court and hence, E.P. had been filed and the order passed in E.P.Nos.22 and 33 of 1999 in O.P.No.32 of 1998, has been marked as Exs.P-5 and P-6 respectively, in which, it was ordered that Mohammed Yaseen has to pay Rs.11,20,000/-with interest @ 24% with effect from 9.12.1996 and Rs.3 lakhs as damages for loss and mental agony suffered. Since the agreement has not been complied with, the appellants-complainants filed petition before the State Consumer Disputes Redressal Forum, in which, Mohammed Yaseen was sentenced to two years rigorous imprisonment on 17.1.2000 for noncompliance of the order in O.P.No.32 of 1998. Immediately, the said Mohammed Yaseen preferred a C.R.P.No.3429 of 2000 and the affidavit in the said C.R.P. has been marked as Ex.P-7 in respect of Crl.A.No.148 of 2006. During the pendency of C.R.P.No.3429 of 2000, the present accused-Mohammed Hussain, on behalf of his brother-in-law Mohammed Yaseen, approached the appellants-complainants for settlement and a settlement has also been reached. Rs.14,50,000/- has been accepted for full and final settlement of all claims of Mohammed Yaseen and accordingly, on 4.12.2000, a memorandum of agreement was entered into between the parties as per Exs.P-6 and P-7 respectively. Rs.14,50,000/- has been accepted for full and final settlement of all claims of Mohammed Yaseen and accordingly, on 4.12.2000, a memorandum of agreement was entered into between the parties as per Exs.P-6 and P-7 respectively. In the said memorandum of agreement, dated 4.12.2000, the following clauses are stated: "NOW THIS AGREEMENT WITNESSES AS FOLLOWS: a) The parties of the second part has this day paid a sum of Rs.1,50,000/- Rupees One lakh and Fifty Thousand only by way of Demand Draft dt:13/11/2000 drawn on UCO Bank, Service Branch, Chennai, towards part compensation, the receipt of which sum is acknowledged by the parties of the first part. b) The parties of the second part hereby agrees and undertakes to pay the balance sum of Rs.13,00,000 (Rupees thirteen lakhs) which includes balance compensation of Rs.1,50,000 (Rupees one Lac. fifty thousand only) within a period of two months from this day and have for this purpose given two post dated cheques in favour of the parties of the first part, the details of which are as follows: i) Cheque No.554716 dt: 5/2/2001 in favour of Mrs.Shukla Dutta Roy drawn on Canara Bank, Vepery Branch, for an amount of Rs.6,50,000 (Rupees Six Lakhs and Fifty Thousand Only); ii) Cheque No.554718 dt: 5/2/2001 in favour of Mr.Biplab Dutta Roy drawn on Canara Bank, Vepery Branch, for an amount of Rs.6,50,000 (Rupees Six Lakhs and Fifty Thousand Only); c) The parties of the second part hereby assures and affirms to the parties of the first part that they will honour the cheques without any default. Further the counsel for the parties of the second part Mr.P.Rajamanickam, also undertakes to ensure and help in the payment of the entire balance of Rs.13,00,000 by the parties of the second part, in token of which he has signed this agreement as a witness. Further the counsel for the parties of the second part Mr.P.Rajamanickam, also undertakes to ensure and help in the payment of the entire balance of Rs.13,00,000 by the parties of the second part, in token of which he has signed this agreement as a witness. d) In the event of any default in honouring the two post dated cheques, the parties of the second part agree that they are liable for any criminal prosecution that may be initiated by the parties of the first part for the said purpose; e) The parties of the first part agreed to file an affidavit before the Honble High Court, Madras, in C.R.P.No.3429/2000 to the effect that the dues by Mr.Yaseen has been fully settled in O.P.No.32/1998." On the basis of the said memorandum of agreement, dated 4.12.2000, as per Ex.P-7 in Crl.A.No.148 of 2006, an affidavit has been filed by the complainants, which shows that admittedly, on 4.12.2000, the disputed two cheques, each for Rs.6,50,000/-, have been issued in the name of the appellants-complainants. 7. At this juncture, it is appropriate to consider the decision relied upon by the learned Senior Counsel appearing for the appellants-complainants, reported in 2002 (6) SCC 426 (ICDS Ltd. Vs. Beena Shabeer), in which, the Supreme Court held as follows: "8. The High Court, as noticed above, did allow the petition upon a categorical finding that being a cheque from the guarantor it could not be said to have been issued for the purpose of discharging any debt or liability and the complaint under Section 138 of the Negotiable Instruments Act, 1881, thus cannot be maintained." "10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words "Where any cheque". The abovenoted three words are of extreme significance, in particular, by reason of the user of the word "any"---the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment." "11. The issue as regards the coextensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the statute depicts the intent of the law-makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. "Any cheque" and "other liability" are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. Any contra-interpretation would defeat the intent of the legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantors liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus do not lend any assistance to the contentions raised by the respondents." 8. It is true that Ex.P-8 cheques, in both the cases, have been issued only to discharge the liability of Mohammed Yaseen, the brother-in-law of the respondent-accused. As per the said decision reported in 2002 (6) SCC 426 (cited supra), if a cheques is issued in discharge of any debt or other liability, there cannot be any restriction or embargo in the matter of application of the provision of Section 138 of the N.I. Act and "Any Cheque" and "other liability" are the two key expressions which stand as clarifying the Legislative intent so as to bring the factual context within the ambit of the provisions of the statute. While applying the said decision of the Supreme Court to the facts of the present cases, I am of the view that Ex.P-8 cheques, in both the cases, were issued for the discharge of subsisting liability on the date of issuance on 4.12.2000. Furthermore, the learned Senior Counsel for the respondent (accused) counsel has not quarrelled over the proposition laid down in the said decision and he has also not advanced any argument in respect of the fact that on the date of issuance of Ex.P-8 cheques in both the cases, there is no subsisting liability. Hence, I am of the view that Ex.P-8 cheques were issued only for the discharge of liability of Mohammed Yaseen, the brother-in-law of the respondent-accused. 9. Learned Senior Counsel appearing for the respondent-accused would mainly focus upon the documents marked in the respective cases, namely, the memorandum of agreement entered on 4.12.2000 and the affidavit of the appellants-complainants, sworn to on 4.12.2000 in C.R.P.No.3429 of 2000. 10. Admittedly, the said affidavit of the appellants-complainants in C.R.P.No.3429 of 2000, was filed on 6.12.2000. The case of the respondent-accused is that on 4.12.2000, the parties entered into a memorandum of agreement dated 4.12.2000 and cheques have been issued. But the Advocate for the complainants has intimated that cash has to be paid and so, on 5.12.2000, cash of Rs.13 lakhs had been paid in the office of Mr.Venkatavaradhan, Advocate for the complainants by D.W.1 Tippu Sultan and D.W.3 Mohammed Hussain, to P.W.1 B.D.Roy and his wife, in the presence of the Advocate Rajamanickam D.W.2. Only in pursuance of the same, Ex.P-7 affidavit, dated 4.12.2000, in C.R.P.No.3429 of 2000, had been filed before the trial Court in C.C.No.3727 of 2001, in which it is stated as follows: "1. We submit that the amounts due under the order dt.24/11/1998 passed by the State Consumer Disputes Redressal Commission, Chennai in O.P.No.32 of 1998 has been fully received by us from Mr.V.Mohammed Hussain and Mr.A.Tippu, the brother-in-law and the brother respectively of the petitioner Mr.Mohammed Yaseen. The order of the State Consumer Disputes Redressal Commission has been fully complied." 11. We submit that the amounts due under the order dt.24/11/1998 passed by the State Consumer Disputes Redressal Commission, Chennai in O.P.No.32 of 1998 has been fully received by us from Mr.V.Mohammed Hussain and Mr.A.Tippu, the brother-in-law and the brother respectively of the petitioner Mr.Mohammed Yaseen. The order of the State Consumer Disputes Redressal Commission has been fully complied." 11. Further, the learned Senior Counsel appearing for the respondent-accused culled out the portion from the English translation of the evidence of the witnesses, which is filed in the typed set of papers along with the Criminal Appeals and the relevant portion of the same are extracted hereunder: (a) P.W.1 B.D.Roy, in C.C.No.3726 of 2001, has stated in his cross examination as follows: "... I have filed an affidavit duly signed by me before the Madras High Court stating that since Mohamed Yasin has paid me the entire amount, the case before the Consumer Forum was withdrawn. This affidavit was sworn only on the agreement entered into between us. I have not filed any case against Mohamed Yasin. ...." (b) D.W.1 A.Thippu Sulthan in C.C.NO.3726 of 2001, has stated as follows in his chief examination: " .... We have filed an application before the High Court for granting bail to Mohamed Yasin. However, the High Court has not accepted the above settlement. On the next day, we have entered into full settlement and consequently, the case against Mohamed Yasin was withdrawn and his imprisonment was cancelled. We have given cash towards full settlement. However, no receipt was issued for the amounts received by B.D.Roy and also he did not return back the cheque." (c) D.W.2 Rajamanickam, in C.C.No.3726 of 2001, in his chief examination, has stated as follows : "... On 5.12.2000 at 5 P.M., myself, petitioners relative and the accused went to the house of the petitioners advocate R.Venkatavaradan. R.Venkatavaradan had called the petitioner over phone. The petitioner along with his wife came there. Mohamed Yasin had given Rs.13 lakhs to the petitioner and his wife in the presence of the accused, myself and R.Venkatavaradan. I had asked the petitioner to return the agreement and the cheques, for which, he informed that the same are in his house. ...." 12. Learned Senior Counsel appearing for the respondent-accused submitted that the amount has been paid to the appellants and so, the respondent-accused has proved that the amount has been discharged. I had asked the petitioner to return the agreement and the cheques, for which, he informed that the same are in his house. ...." 12. Learned Senior Counsel appearing for the respondent-accused submitted that the amount has been paid to the appellants and so, the respondent-accused has proved that the amount has been discharged. To substantiate the same, he relied upon the decision of the Supreme Court, reported in 2008 (1) SCC 258 (K.Prakashan Vs. P.K.Surenderan), in which, the Supreme Court observed as follows: "13. The Act raises two presumptions: firstly, in regard to the passing of consideration as contained in Section 118(a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118(a) and 139 are rebuttable in nature. Having regard to the definition of terms "proved" and "disproved" as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-a-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision. 14. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability." 13. Relying on the said decision reported in 2008 (1) SCC 258 (cited supra), learned Senior Counsel appearing for the respondent-accused submitted that the respondent-accused has proved that the liability had been discharged, and as held by the Supreme Court, it is not in doubt or dispute that the standard of proof so far as the prosecution is concerned, is, proof of guilt beyond all reasonable doubt and that, of the accused, it is only mere preponderance of probability. Hence, as per the evidence, it is proved that the amount has been discharged on 5.12.2000 and furthermore, the name of the Advocate of the complainants, namely Mr.Venkatavaradhan is indicated in the evidence of D.W.2 Rajamanickam, because, only in the presence of the said Mr.Venkatavaradhan, in his house, the amount had been paid, and the said Mr.Venkatavaradhan was not examined before Court, which is fatal to the case. The trial Court has considered these aspects and hence, learned Senior Counsel appearing for the respondent-accused prayed for dismissal of the Criminal Appeals. 14. It is true that the prosecution has to prove the case beyond all reasonable doubt and the accused has to prove his case by way of defence, by mere preponderance of probability. In the present cases, as per the evidence, it is contended that the respondent-accused proved his case. 15. At this juncture, it is appropriate to consider each and every document. Admittedly, in the respective cases, Exs.P-6/P-7 memorandum of agreement, had been admitted by both sides and it was executed on 4.12.2000. As already incorporated in the earlier paragraph of this judgment, the clauses to the said memorandum of agreement, dated 4.12.2000, it was stated therein that the cheques have been given. The only defence is whether on 5.12.2000, the amount of Rs.13 lakhs had been paid. 16. It would now be appropriate on the part of the Court to answer the question raised by the learned Senior Counsel for the appellants-complainants that the respondent-accused paid Rs.1,50,000/- by way of Demand Draft and obtained receipt. But, the contention that when the respondent-accused paid Rs.13 lakhs by way of cash, he has not received any receipt for the reception of the amount, is unacceptable one. 17. It is true that admittedly, there was a strained relationship between the appellants and Mohammed Yaseen, the brother-in-law of the respondent-accused and the said Mohammed Yaseen was housed at jail for non-compliance of the order passed by the State Consumer Disputes Redressal Forum. At that time only, the said Mohammed Yaseen preferred Civil Revision Petition before this Court, in which, the parties wanted to settle and they wanted Mohammed Yaseen, the brother-in-law of the accused to be released from jail; they mobilised funds and the appellants-complainants received only Rs.1,50,000/- by way of Demand Draft. On payment of amount by way of Demand Draft, it is stated that the respondent-accused received the receipt. But there is no evidence to show that for the payment of Rs.13 lakhs in cash, as to how they mobilised the same. But, it is not necessary. 18. On payment of amount by way of Demand Draft, it is stated that the respondent-accused received the receipt. But there is no evidence to show that for the payment of Rs.13 lakhs in cash, as to how they mobilised the same. But, it is not necessary. 18. As already stated, as per the dictum of the Apex Court in the decision reported in 2008 (1) SCC 258 (cited supra), in respect of criminal jurisdiction, the prosecution alone has to prove the guilt of the accused beyond reasonable doubt and the accused need not prove his case beyond reasonable doubt and the standard of proof in respect of the accused is only mere preponderance of probability, which is enough. 19. In the present case, the respondent-accused stated that he paid Rs.13 lakhs by way of cash, to the appellants-complainants, for which, no receipt was issued by the appellants-complainants. This Court has to consider whether the statement of defence taken by the respondent-accused is acceptable one. 20. The circumstances for disbelieving the payment of Rs.13 lakhs, are as follows:- (i) Admittedly, there was strained relationship between the brother-in-law of the accused and the complainants from 1998 onwards. In such circumstances, the contention that the respondent-accused paid Rs.13 lakhs by way of cash and not received any single receipt for payment of the amount, does not merit acceptance. No prudent man will pay Rs.13 lakhs without receiving any receipt acknowledging the same, considering the strained relationship and the litigation pending before this Court. If really the appellants-complainants would state that the cheques were in his house, nothing prevented the respondent-accused to receive a mere receipt/acknowledgement for reception of the amount of Rs.13 lakhs. (ii) It is admitted by the respondent-accused that the receipt was received for payment of Rs.1,50,000/- by way of Demand Draft on 4.12.2000. But, it is painful to accept that the respondent-accused paid Rs.13 lakhs by way of cash, without even receiving the receipt for payment of the same. (iii) Admittedly, Ex.P-7 (in C.C.No.3727 of 2001) affidavit in C.R.P.No.3429 of 2000, was sworn to 4.12.2000 and that has been filed on 6.12.2000. In the said affidavit, it was stated by the appellants-complainants that, " ... (iii) Admittedly, Ex.P-7 (in C.C.No.3727 of 2001) affidavit in C.R.P.No.3429 of 2000, was sworn to 4.12.2000 and that has been filed on 6.12.2000. In the said affidavit, it was stated by the appellants-complainants that, " ... the amounts due under the order dt.24.11.1998 passed by the State Consumer Disputes Redressal Commission, Chennai in O.P.No.32 of 1998 has been fully received by us from Mr.V.Mohammed Hussain and Mr.A.Tippu, the brother-in-law and the brother respectively of the petitioner Mr.Mohammed Yaseen...." Admittedly, on 4.12.2000, the amount has not been paid. In such circumstances, only on the basis of the said affidavit (Ex.P-7) sworn to on 4.12.2000, which was filed on 6.12.2000 and which was considered by Court and Mohammed Yaseen was released from jail, it is unsafe to conclude that Rs.13 lakhs had been paid as cash on 5.12.2000. (iv) Admittedly, as per the evidence of the defence, they have paid cash on 5.12.2000 to the appellants-complainants. The said affidavit, sworn to on 4.12.2000, had been filed on 6.12.2000. The respondent-accused would have very well intimated the same before the Court of Law that they have paid the entire amount by way of cash, but they have not even taken back the cheques issued by the respondent-accused. Nothing has been mentioned before the Court of Law. The appellants-complainants issued notice on 14.3.2001 and the respondent-accused has not given any reply to the notice issued by the appellants-complainant for return of the cheques dated 5.2.2001, issued on 4.12.2000. Considering the strained relationship between Mohammed Yaseen and the appellants-complainants, even then, after receipt of the notice as per Ex.P-11 (in C.C.No.3726 of 2001) dated 14.3.2001, the respondent-accused neither gave reply, nor paid the amount. (v) One more clinching circumstance is that during the pendency of the criminal case before the Metropolitan Magistrates Court, learned counsel for the accused before the lower Court, has filed petition Ex.P-13 (in C.C.No.3727 of 2001) on 19.2.2002, under Section 309 Cr.P.C., in which, it was stated as follows: "The accused submits is unable to attend this Honble Court today, as he is laid up with viral fever. The Petnr/accused is to be settled the entire amount in the last week of May 2002. The Petnr/accused is to be settled the entire amount in the last week of May 2002. It is therefore prayed that this Honble Court may be pleased to adjourn the above case which is posted today, to some other date .." At this juncture, it is appropriate to consider the evidence let in on the side of the respondent-accused. D.W.1 Thippu Sultan in C.C.No.3726 of 2001 has stated in his evidence during cross examination, as follows: " ... I do not know that during pendency of the case a sum of Rs.20,000/- was given by the accused to the petitioner. I do not know that the advocate for the accused has filed M.P.No.829/2002 dated 19.2.2002 stating that the entire amount will be settled in the end of May. ...." So, considering the said evidence of D.W.1 Thippu Sulthan, there is no convincing explanation offered for filing Ex.P-13 petition under Section 309 Cr.P.C. In the said petition under Section 309 Cr.P.C., the respondent-accused pleaded that he is going to settle the matter in the last week of May 2002 and sought for adjournment of the case. It is one of the important pieces of evidence to show that the respondent-accused, before or after filing of the complaints or even after filing of the said petition under Section 309 Cr.P.C., had not discharged the amounts due on the cheques. It is also pertinent to note that through D.W.2--Mohammed Hussain--respondent/accused, Ex.P-13 petition under Section 309 Cr.P.C., was marked in C.C.No.3727 of 2001. In his evidence, D.W.2 Mohammed Hussain--respondent/accused has stated as follows during cross examination in C.C.No.3727 of 2001: " ... complainant agreed to withdraw the case, based on that I gave petition to pay the money within May, 2002. It is numbered as Ex.P-13...." This shows that the respondent-accused filed petition under Section 309 Cr.P.C. But, there is no averment that the appellants-complainants undertook to withdraw the case. So, considering the evidence of D.W.1 Thippu Sulthan and D.W.2 Mohammed Hussain (respondent-accused), it is seen that the amounts specified in Ex.P-8 cheques, have not been discharged by way of paying Rs.13 lakhs cash. So, considering the evidence of D.W.1 Thippu Sulthan and D.W.2 Mohammed Hussain (respondent-accused), it is seen that the amounts specified in Ex.P-8 cheques, have not been discharged by way of paying Rs.13 lakhs cash. (vi) Further, even as per the evidence of the accused Mohammed Hussain (as D.W.2 in C.C.No.3727 of 2001 and as D.W.3 in C.C.No.3727 of 2001) and also as per the evidence of D.W.2 Rajamanickam, the respondent-accused paid the amount of Rs.13 lakhs on 5.12.2000, but the appellants-complainants have not returned back the cheques. It is not known as to what prevented the accused to give notice to the Bank for "stop payment" to the appellants-complainants. It is also one of the clinching circumstances to show that the respondent-accused had not discharged the amounts due on the cheques. (vii) Moreover, D.W.2 Rajamanickam, the Advocate who was appearing on behalf of Mohammed Yaseen, in his evidence, stated that on 5.12.2000, the amount of Rs.13 lakhs was paid to the complainants, by Mohammed Yaseen in the presence of himself (Rajamanickam), the respondent-accused-Mohammed Hussain and the Advocate Venkatavaradhan. Furthermore, D.W.3 Mohammed Hussain (respondent-accused) in his evidence has stated during cross examination in C.C.No.3726 of 2001, as follows: "... Myself, my brother-in-laws advocate Rajamanickam, my brother-in-law and Tippu (D.W.1) met the petitioner and his counsel at his residence on 5.12.2000 around 5 p.m. and gave a sum of Rs.13 lakhs by cash to the petitioner through our advocate. ..." Admittedly, on 6.12.2000, C.R.P.No.3429 of 2000, was disposed of by this Court and Mohammed Yaseen was released from jail after 6.12.2000. In his evidence, the respondent-accused D.W.3 Mohammed Hussain, in C.C.No.3726 of 2001, has stated that, "...Accordingly, the High Court ordered release of Mohammed Yasin...", which shows that only on 6.12.2000, there was an order for release of Mohammed Yaseen from jail. In the abovesaid circumstances, it is not possible to handover cash of Rs.13 lakhs by Mohammed Yaseen to the appellants-complainants in the presence of D.W.2 Rajamanickam, the respondent-accused Mohammed Hussain, the complainants Advocate Mr.Venkatavaradhan and D.W.1 Thippu Sulthan, on 5.12.2000. So, the evidence of D.W.2 Rajamanickam and the evidence of the respondent-accused (as D.Ws.2 and 3 in the respective cases) is falsifying the payment of Rs.13 lakhs by way of cash to the appellants-complainants on 5.12.2000. 21. So, the evidence of D.W.2 Rajamanickam and the evidence of the respondent-accused (as D.Ws.2 and 3 in the respective cases) is falsifying the payment of Rs.13 lakhs by way of cash to the appellants-complainants on 5.12.2000. 21. Furthermore, after the appellants-complainants received the return memo from the Bank and the debit advice, they have issued notice on 14.3.2001, which was received by the respondent-accused under Ex.P-12 acknowledgement card, in both the cases. But the respondent-accused has not sent any reply. Without referring to the facts, if the respondent-accused has repaid the amount immediately, he would have given a reply as well as called for return of the cheques. But the respondent-accused kept quiet all along. 22. Further, as already stated in the earlier paragraphs of this judgment, during the pendency of the calendar cases before the trial Court, the respondent-accused filed a petition under Section 309 Cr.P.C. for settling the entire amount in the last week of May 2002, which is evident from Ex.P-13 in C.C.No.3727 of 2001. 23. Even though learned Senior Counsel for the appellants-accused would contend that the mode of mobilisation of funds in respect of Rs.13 lakhs, has not been mentioned by the accused, is fatal to the case, but the above argument does not merit acceptance, because, as already stated, the respondent-accused has to prove only the preponderance of probability and not like the prosecution, which has to prove the guilt of the accused beyond reasonable doubt. 24. The above points clearly proved that the respondent-accused has not discharged the amount in both the cases. The appellants-complainants entered into memorandum of agreement on 4.12.2000 and received the cheques in question and as noticed above, the appellants-complainants have sworn to an affidavit Ex.P-7 on 4.12.2000 in C.R.P.No.3429 of 2000, which was stated to have been filed on 6.12.2000. There was previous enmity between the appellants-complainants and the said Mohammed Yaseen, the brother-in-law of the accused. The respondent-accused has relied on Ex.P-7 affidavit in C.R.P.No.3429 of 2000, as a trump-card and claims that he has discharged the entire amount. In the above circumstances, I am of the view that the accused has not proved that he has discharged the amounts in respect of the cheques in question. So, the trial Court has not considered this aspect in proper perspective. 25. In the above circumstances, I am of the view that the accused has not proved that he has discharged the amounts in respect of the cheques in question. So, the trial Court has not considered this aspect in proper perspective. 25. The notice has been issued by the appellants-complainants and the cheques have been presented before the Bank, which were returned as per Exs.P-9 and P-10 in the respective cases, and the said notice has been issued in accordance with the provisions of law under Ex.P-11 and that has been received as per Ex.P-12 acknowledgement card, but neither reply was sent by the respondent-accused, nor he paid the amount and hence, the appellants-complainants filed complaints before the trial Court. 26. Hence, the ingredients of Section 138 of the N.I. Act are made out. So, the impugned judgments of acquittal passed by the trial Court are liable to be set aside. The respondent-accused is hereby found guilty of the charge/offence under Section 138 of the N.I. Act in both the cases. 27. In the result, (a) The Criminal Appeals filed by the appellants-complainants, are allowed. (b) The impugned judgments of acquittal passed by the trial Court, are set aside. (c) In both the cases, the respondent-accused is hereby found guilty of the offence under Section 138 of the N.I. Act and he is accordingly convicted for the offence under Section 138 of the N.I. Act. 28. Post the Criminal Appeals under the caption "for questioning the respondent-accused in respect of the sentence", on 15.04.2010.