Judgment Heard Mr. P. S. Rao, learned Advocate for the appellant and Mr. S. D. Lotlikar, learned Senior Advocate for the respondent. 2. By this appeal, the appellant takes exception to the judgment and order dated 30.6.2009 passed by Judicial Magistrate, First Class, Vasco da Gama in Criminal Case no. 551/NIA/2008/D by which respondent has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). 3. The appellant is the original complainant. The complainant filed the above case through power of attorney holder Shri Prakash Sutar alleging commission of the offence punishable under Section 138 of the Act. According to the complainant, the accused had engaged services of the complainant for transporting iron ore since 2006 from M/s. Zeenath Transport Company Mines, Hospet to M/s. Sesa Industries Limited, Goa and while returning the complainant was transporting Met-coke for the accused from Mormugao Port Trust Harbour, Vasco to Hospet. According to the complainant, the accused issued two cheques dated 29.4.2008 for amounts of Rs.78,595/-(Rupees seventy eight thousand five hundred ninety five only) and Rs.3,29,976/-(Rupees three lakhs twenty nine thousand nine hundred seventy six only) drawn on Bank of Maharashtra, Hospet branch. The cheques were deposited by the complainant. Upon deposit, cheques were dishonoured. Thereafter, by legal notice dated 4.6.2008 which was sent by registered post A.D., the complainant called upon the accused to make payment together with interest. However, the said notice returned back with the endorsement “unclaimed”. Thereafter, the complaint was filed. 4. In Criminal Case No. 551/NIA/2008/D, on behalf of the complainant, Shri Prakash Sutar -the constituted attorney of Shri Shrinivas Pawar, the proprietor of the complainant firm was examined. The accused tendered his evidence by way of affidavit and thereafter, he was cross examined. The defence of the accused was that he did not owe any money to the complainant nor he had any business transaction with the complainant. It was further his case that one Vijay Chikkodi was working with the accused to whom the accused had employed at the request of the complainant and said Chikkodi was in very good terms with the complainant. The accused had taken the defence that the cheques were lost and they were also forged. 5. Learned Magistrate framed the following points for determination which were answered against the complainant:- 1. The accused had taken the defence that the cheques were lost and they were also forged. 5. Learned Magistrate framed the following points for determination which were answered against the complainant:- 1. Whether complainant proves that the cheque issued was towards the discharge of legally enforceable debt? 2. Whether the accused has rebutted the presumption under Section 139 of the Negotiable Instruments Act? 6. Learned Magistrate held that there were no independent witnesses examined by the complainant to prove that there was oral transaction between the complainant and the accused in respect of the material. Learned Magistrate dismissed the complaint also on the ground that the complainant had not produced any documents in support of his case that amounts due in respect of two cheques were due to the complainant from the accused. 7. Mr. Rao, learned counsel appearing for the appellant/complainant submitted that the approach of the learned Magistrate is patently wrong inasmuch as the learned Magistrate has cast burden of proving consideration in respect of two cheques on the complainant when in fact in terms of Sections 118 and 139 of the Act there is presumption as to consideration and the same has to be rebutted by the accused either by leading evidence or by cross examination of the complainant and his witness. Learned counsel further submitted that the accused had taken patently false defence that cheques were lost and forged when in fact the accused even did not file any complaint regarding missing of the cheques or forgery of the cheques. Learned counsel further submitted that the cheques were returned with the endorsement “insufficient funds” and not on the ground that signatures did not tally and as such, the burden of proving that the signatures on the cheques were not those of the accused was on the accused which the accused had not discharged by leading any evidence. Leaned Counsel further submitted that the evidence of the accused could not have been tendered by filing an affidavit and it was necessary for the accused to step into the box and learned Magistrate erred in permitting the accused to lead evidence by way of affidavit which is not permissible under the law. Leaned Counsel further submitted that the evidence of the accused could not have been tendered by filing an affidavit and it was necessary for the accused to step into the box and learned Magistrate erred in permitting the accused to lead evidence by way of affidavit which is not permissible under the law. Learned Counsel further submitted that it was for the accused to rebut the presumption available under Sections 118 and 139 of the Act by leading evidence and having regard to the fact in the present case the accused ought to have produced documents in possession since the accused did not dispute that there was transaction between the complainant and the accused. Mr. Rao further submitted that the findings recorded by the learned Magistrate are not borne out from the evidence on record and are patently perverse and the view taken by learned Magistrate for acquitting the accused, is contrary to the settled legal position. Therefore, the impugned judgment and order is liable to be set aside and the accused convicted for the offence punishable under Section 138 of the Act. 8. In support of his submissions, Mr. Rao placed reliance upon the following Judgments:- i. M/s. Mandvi Co-operative Bank Ltd Vs. Nimesh B. Thakore, 2010 (3) SCC 82, ii. Kalyani Baskar(Mrs.) Vs. M. S. Sampoornam (Mrs.), (2007) 2 SCC 258 iii. K. N. Beena Vs. Muniyappan and another, (2001) 8 SCC 458 iv. L. C. Goyal Vs. Suresh Joshi(Mrs) and others, (1999) 3 SCC 376 v. T. Nagappa Vs. Y. R. Muralidhar, (2008) 5 SCC 633 . 9. Per contra, Mr. S. D. Lotlikar, learned Senior Counsel appearing for the respondent/accused supported the impugned judgment and order and submitted that the complaint filed by the appellant cannot be termed as a complaint but it is essentially a suit for recovery of money. Learned counsel further submitted that the complainant had not stepped in the box but chosen to examine his power of attorney and, as such, an adverse inference has to be drawn against him. Learned counsel further submitted that in the notice dated 4.6.2008 issued to the accused there is not even mention of transportation of ore from Hospet to Goa which is the case set up in the complaint and, as such, the accused has been able to rebut the presumption available under Sections 118 and 139 of the Act. Learned counsel further submitted that in the notice dated 4.6.2008 issued to the accused there is not even mention of transportation of ore from Hospet to Goa which is the case set up in the complaint and, as such, the accused has been able to rebut the presumption available under Sections 118 and 139 of the Act. Learned counsel further submitted that the attorney of the complainant has admitted in his cross examination that even the vehicles of the accused used to come to their company which discloses that there was mutual transaction between the complainant and the accused and in this factual background once the consideration for the cheques was challenged, the complainant was bound to prove the same by producing documentary evidence in his possession which the complainant has failed to prove. Learned counsel further submitted that in so far as filing of the evidence by the accused by way of affidavit is concerned, the complainant having not objected to the same before the Magistrate, is not entitled to contend now that the evidence of the accused be not looked into. Mr. Lotlikar, further submitted that this is the only an irregularity which does not go to the root of the matter and the evidence of the accused on affidavit deserves to be considered while appreciating the evidence led by both the parties in the case. Mr. Lotlikar further submitted that although all the reasons given by learned Magistrate for acquitting the accused are not well founded, yet upon analysis of the evidence led by both the parties, the accused has been able to discharge the burden cast on him of proving that both the cheques were without consideration. Learned counsel further submitted that the complainant has not been able to substantiate the transaction between the complainant and the accused in the light of the defence taken by the accused that there was no transaction between the complainant and the accused. Learned counsel further submitted that although the complainant chose to produce some bills at the time of verification of record, the same were not tendered in evidence during the trial which clearly substantiates the defence taken by the accused that the cheques were without consideration. Learned Counsel lastly submitted that the accused has been able to discharge the burden of proving that the cheques were not issued in discharge of legally enforceable debt. 10. Learned Counsel lastly submitted that the accused has been able to discharge the burden of proving that the cheques were not issued in discharge of legally enforceable debt. 10. In support of his submissions, Mr. Lotlikar placed reliance upon the following judgments:- i. Rangappa Vs. Sri Mohan, (2010)11 SCC 441 . ii. Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513 . iii. M. S. Narayana Menon alias Mani Vs. State of Kerala and another, (2006) 6 SCC 39 . 11. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 12. The question which arises for determination in this appeal is whether the learned Magistrate was justified in holding that the accused had discharged the burden of proving that the two cheques were not issued in discharge of legally enforceable debt. 13. As stated above, the complainant chose not to step in the box but to examine shri Prakash Sutar a duly constituted attorney by virtue of power of attorney dated 3.7.2008. He deposed that the accused had engaged their services. M/s. Deogiri Transport deals with transportation business and the accused had engaged services of the complainant for transportation of iron ore since 2006 from M/s. Zeenath Transport Company Mines, Hospet, to M/s. Sesa Industries Ltd., Goa and while returning the accused was transporting Met-coke of M/s. Deogiri Transport from Mormugao Port Trust Harbour to Hospet. He further stated that towards the outstanding dues payable to the complainant, the accused issued two cheques dated 29.4.2008 for Rs.78,597/-(Rupees seventy eight thousand five hundred ninety seven only) and another cheque for Rs. 3,29,976/-(Rupees three lakhs twenty nine thousand nine hundred seventy six only) and upon deposit, the same was returned with the remark “insufficient funds”. Thereafter, the notice dated 4.6.2008 was issued to the accused and since the accused did not pay the amounts, the complaint was filed. The said witness produced all the relevant documents referred to in the examination in chief. In the cross examination, he stated that he was working for the complainant since 14.3.2008 as Operation Manager. He further stated that their vehicles used to go to the company of the accused and his vehicles used to come to their company and the vehicles of the accused were engaged from 2006 but from 28.1.2008 the services of the accused were discontinued. He further stated that their vehicles used to go to the company of the accused and his vehicles used to come to their company and the vehicles of the accused were engaged from 2006 but from 28.1.2008 the services of the accused were discontinued. The business was in respect of the materials as well as vehicles. He denied the suggestion that the accused was only taking the services of vehicles and not the materials. He further stated that the complainant used to get approximately business of around Rs. 50,000/-to Rs.75,000/-per week. He stated that the amount of Rs. 4,08,571/-( Rupees four lakhs eight thousand five hundred and seventy one only) was due from the accused to the complainant. He denied the suggestion that no amount was due from the accused to the complainant. In further cross examination, he stated that business with the accused was oral and they did not maintain the bills but they have maintained the record in the computer in respect of the transaction. He further stated that the cheques were sent to them from hospet where the accused had office. He further stated that he did not know where the accused is having office at Vasco. He denied the suggestion that the accused had business transaction with him only till December, 2006. He denied the suggestion that the accused had not issued the cheques to the complainant or that the accused had not received the notice. 14. In the affidavit in evidence, the accused stated that false complaint was filed by the complainant to extract money as his helper Vijay Chickkodi was in connivance with power of attorney of the Complainant Mr. Prakash Sutar and both of them have misused the cheques which were kept in his office. He further stated that Vijay Chickkodi had left the job in 2007. He further stated that he came to know about the misuse of the cheques for the first time when he received summons from the Court. He further stated that the cheques were manufactured documents in order to show that the cheques were issued for legally enforceable liability. He further stated that no amount was due by him to the complainant. In cross examination, the admitted that he had not stated in his evidence that Prakash Sutar requested him to employ Vijay Chikkoddi. He further stated that the cheques were manufactured documents in order to show that the cheques were issued for legally enforceable liability. He further stated that no amount was due by him to the complainant. In cross examination, the admitted that he had not stated in his evidence that Prakash Sutar requested him to employ Vijay Chikkoddi. Upon the cheques being shown to the accused, he denied his signatures on two cheques. He further denied the signature on the A.D. card. He further stated that he did not lodge police complaint in respect of misuse of the cheques. He further stated that he had all the records in respect of the transaction dealing with the complainant firm. Except for the bank statement, he did not have anything in writing to show that the complainant had received the amounts. He further stated that the cheques might have been stolen by Vijay Chikkoddi. He further denied the suggestion that he had made false allegations against Mr. Prakash Sutar in order to avoid liability which he owed to the complainant. 15. At the outset, I will deal with the submission made by Mr. Rao that the Magistrate ought not to have allowed the accused to file the evidence by way of affidavit. No doubt the Apex Court in the case of M/s. Mandvi Co-operative Bank Ltd (supra) held that in terms of Section 145(1) of the Act, it is only the complainant who can lead the evidence on affidavit. There is no provision in the Act which entitles the accused to lead evidence on affidavit but the fact remains that the learned Magistrate permitted the accused to file his evidence by way of affidavit to which no objection was taken by the complainant. If the objection was taken at the right time, the only course open to the learned Magistrate to permit the accused to step in the box. Therefore, in my view, there is only an irregularity which does not go to the root of the matter and I am not inclined to set aside the order only on this ground, more particularly having regard to Section 465 of Cr.P.C. which provides that the Appellate Court shall not set aside the findings only on the ground that there is any error, omission or irregularity in the proceedings before or during the trial. Therefore, I do not find merit in the submission of Mr. Rao that the impugned judgment and order is liable to be set aside on the above ground. 16. Perusal of the judgment and order discloses that the learned Magistrate has proceeded on the footing that it was for the complainant to prove the consideration in respect of two cheques, I find merit in the submission of Mr. Rao that the point for determination has not been properly framed. But this fact by itself would not be sufficient to reverse the order of acquittal passed by the learned Magistrate and this Court being the Appellate Court, will have to re-appreciate the evidence and give finding on the basis of materials placed on record by both the sides. 17. No doubt, the Apex Court in a catena of decisions has held that when a cheque is issued presumption under Sections 118 and 139 of the Act is available in favour of the complainant and it is for the accused to discharge the burden of proving that the cheque was not issued in discharge of legally enforceable debt. 18. In the present case, admittedly both the parties have not produced any documentary evidence in support of their respective pleas. However, the fact remains that the accused in cross examination of the complainant had challenged the consideration in respect of two cheques. In cross examination, the attorney of the complainant had stated that the complainant also used to engage the vehicles of the accused from 2006 and even on 28.1.2008 the services of the accused were continued. This being the position, the submission of Mr. Lotlikar that there were mutual transactions between the parties deserves to be accepted on the basis of the statement made by the attorney of the complainant. In this factual background, once the accused challenges the consideration for two cheques, the complainant was expected to produce documents in his possession in support of the consideration, more particularly having regard to the cross-examination of Mr. Sutar wherein he has admitted that such a record was available in the computer. No doubt, the burden of proving that the cheques were not issued for consideration is squarely on the accused in a case arising under Section 138 of the Act. Sutar wherein he has admitted that such a record was available in the computer. No doubt, the burden of proving that the cheques were not issued for consideration is squarely on the accused in a case arising under Section 138 of the Act. It is also well settled that such a burden can also be discharged by the accused by cross examination of the complainant and his witnesses and it is not necessary for the accused to step in the box. It is also well settled that the accused is entitled to prove his defence by preponderance of probability as in a civil case and he need not prove his case beyond reasonable doubt. 19. No doubt, the defence taken by the accused that the cheques were lost or that they were misused by PW1 has absolutely not been substantiated by the accused. Similarly, the case set up by the accused in his cross examination that the signatures on the cheques were not his signatures has not been substantiated and the said defence is without any merit in as much as the cheques were admittedly not dishonoured on account of “not tallied with the signature” but on account of “insufficient funds”. 20. Mr. Rao is right in contending that it was for the accused to substantiate his defence that the signatures on the cheques were not his by leading cogent evidence, as held by the Apex Court in the case of T. Nagappa (supra). But merely because the accused had taken unsustainable defence by itself would not be sufficient to come to the conclusion that the offence punishable under Section 138 of the Act is made out against the accused. Mr. Lotlikar, is also right in contending that in the notice dated 4.6.2008 there is not even mention of transportation of ore from Hospet to Goa. This fact assumes importance in as much as according to the complainant consideration for the cheques is also towards the services rendered in respect of transportation of ore from Hospet to Goa. Moreover, the complainant himself has not stepped in the box. 21. In my view, upon assessment of the evidence led by the complainant and the accused, the accused has been able to discharge the burden cast on him that the cheques were not issued towards legally enforceable debt. Moreover, the complainant himself has not stepped in the box. 21. In my view, upon assessment of the evidence led by the complainant and the accused, the accused has been able to discharge the burden cast on him that the cheques were not issued towards legally enforceable debt. No doubt, all the reasons given by the learned Magistrate for acquitting the accused of the offence punishable under Section 138 of the Act are not sustainable in law but this fact by itself would not be sufficient for me to come to the conclusion that the complainant has been able to establish the offence punishable under Section 138 of the Act against the accused beyond reasonable doubt. 22. In my view therefore, the ultimate conclusion reached by the learned Magistrate, though for different reasons, cannot be faulted with. 23. For the reasons aforesaid, I do not find merit in the appeal. Consequently, the appeal is dismissed. The bail bond executed by the respondent stands discharged.