JUDGMENT : Bankim. N. Mehta, J. The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of acquittal passed by learned Metropolitan Magistrate (Negotiable Instruments Act) Court No. 6, Ahmedabad, on 15.3.2011 in Criminal Case No. 1129 of 2009 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short). 2. According to the complainant, he is an agriculturist and the accused is doing business of sale and purchase of grains in the name of Sanjay Traders. The accused purchased grains from him on credit and gave cheque No. 722628 dated 20.7.2008 for Rs.1 lakh drawn on Dena Bank, Kheda Branch, towards payment of the goods purchased by him. On presenting the cheque in the bank, it returned unpaid. Therefore, he informed the accused about dishonour of cheque. Therefore, accused gave instructions to present the cheque again in the bank and assured that the cheque would be realized. Therefore, the cheque was again presented in the bank but it returned with endorsement "funds insufficient". Therefore, he served notice through his advocate to the accused demanding the unpaid cheque amount. Notice was served to the accused but he did not pay the unpaid amount of cheque nor reply to the notice. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Metropolitan Magistrate, Ahmedabad and it was registered as Criminal Case No. 1129 of 2009. 3. The trial Court issued summons and the accused appeared and denied having committed the offence. Therefore, prosecution adduced evidence. At the end of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under Section 313 of the Code of Criminal Procedure denied having committed the offence. The accused examined himself as a witness. After hearing learned advocates for the parties, the trial Court by impugned judgment acquitted the accused. 4. Being aggrieved by the said decision, the complainant has preferred this appeal. 5. I have heard learned advocate Mr. Manish Patel for the appellant and learned advocate Mr. R.D. Kinariwala for respondent No. 1 at length and in great detail. I have perused the impugned judgment and record and proceedings of the trial Court. 6. Learned advocate Mr. 4. Being aggrieved by the said decision, the complainant has preferred this appeal. 5. I have heard learned advocate Mr. Manish Patel for the appellant and learned advocate Mr. R.D. Kinariwala for respondent No. 1 at length and in great detail. I have perused the impugned judgment and record and proceedings of the trial Court. 6. Learned advocate Mr. Patel submitted that the accused took up a defence that the cheque was given towards security and the payment was made for the goods purchased by him but the accused did not produce any documentary evidence to show the payment made to the complainant and the documents which were produced were not shown to the complainant when he was in witness-box. Therefore, such documents did not prove payment as claimed by the accused. He further submitted that the accused examined himself as a witness and he admitted that no evidence is produced to show payment to the complainant. Therefore, there was no question of making payment of the outstanding amount and return of cheque given towards security as claimed by the accused. Therefore, the accused failed to rebut presumption under Section 139 of the Act and hence the trial Court committed error in acquitting the accused and therefore, the impugned judgment is required to be set aside. He relied on the decisions of Hon'ble Supreme Court in the case of Tribhuvan Nath v. The State Of Maharashtra reported in 1972 Cri. L.J. 1277 and Dehal Singh v. State Of Himachal Pradesh reported in AIR 2010 SC 3594 . 7. Learned advocate Mr. Kinariwala for the respondent accused submitted that the complainant did not produce any documentary evidence to show the sale and purchase of the goods. Thereby, no evidence was produced to prove the alleged transaction. By cross-examination, the accused was able to raise probable defence and rebut the presumption under Section 139 of the Act. Therefore, the trial Court was justified in acquitting the accused. He further submitted that in a criminal trial when two views are possible, the view favourable to the accused is required to be adopted and the Court should not interfere with the order of acquittal unless it is pointed out that the judgment is perverse. Therefore, the trial Court was justified in acquitting the accused. He further submitted that in a criminal trial when two views are possible, the view favourable to the accused is required to be adopted and the Court should not interfere with the order of acquittal unless it is pointed out that the judgment is perverse. Therefore, in the present case as the appellant failed to point out that the judgment is perverse, this Court should not interfere with the judgment of acquittal passed by the trial Court and hence the appeal is required to be dismissed. He relied on the decisions of Hon'ble Supreme Court in the case of Kamala S. v. Vidhyadharan M. J. & Anr. reported in 2007(5) SCC 264 , M/S. Kumar Exports v. M/s. Ksharma Carpets Reported In 2009(2) Glr 1240 And Mohan Singh v. Prem Singh reported in AIR 2002 SC 3582 . 8. It appears from the allegations made in the complaint that the accused purchased grains from the complainant and gave the cheque in question towards payment of outstanding amount of goods purchased by him. In order to prove the case, the complainant examined himself at Exh. 6. In the cross-examination the witness admitted that he knows Chandrakantbhai Bachhubhai Patel who used to come to him earlier and he used to sell grains to said Chandrakantbhai. The witness also admitted that the accused in the beginning used to purchase grains from him and used to make payment of the same through Chandrakantbhai. The witness also deposed that he did not give bill for the goods sold to the accused and has no document with regard to the delivery of the goods. The witness also admitted that the accused used to give cheques towards security and denied that he used to return the cheques given towards security on making payment by the accused. The witness also denied that the cheque in question was given towards security. 9. On re-examination of the evidence of the complainant it appears that the accused earlier purchased grains from the complainant and made payment through Chandrakantbhai. It also indicates that no bills were given for the sale of grains to the accused and no document to show delivery thereof was produced. 9. On re-examination of the evidence of the complainant it appears that the accused earlier purchased grains from the complainant and made payment through Chandrakantbhai. It also indicates that no bills were given for the sale of grains to the accused and no document to show delivery thereof was produced. It also indicates that the accused used to give cheques towards security when the accused was not able to make cash payment and even after making payment, the cheques given towards security were retained by the complainant. This evidence indicates that no evidence was produced to prove sale and purchase of grains. 10. The prosecution examined broker Chandrakantbhai A. Patel at Exh. 16. It appears from the evidence of this witness that the complainant and the accused came into contact through him and there was business of sale of grains between them. 11. The accused examined himself at Exh. 18. The evidence of this witness indicates that he purchased grains through Chandrakantbhai and had made payment through Dharmeshbhai and Chandrakantbhai. In the cross-examination the witness admitted that he has no documentary evidence to show the payment made to the complainant. 12. Presumption under Section 139 of the Act is rebuttable presumption in favour of holder of cheque. It is settled position that when accused has to rebut the presumption, the standard of proof for doing so is that of preponderance of probability. Therefore, if the accused is able to raise probable defence which creates doubts about existence of legally recoverable debt or liability prosecution can fail and in order to rebut the presumption and raise probable defence, the accused can rely on the material submitted by the complainant. It is also settled position that in order to raise probable defence the accused is required to bring on record something which is so probable for getting shifting the onus of proving to the complainant. The accused has to bring on record such facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man, under the circumstances of the case, shall act upon the plea that it did not exist. 13. In light of above settled legal proposition the evidence produced before the trial Court is required to be examined. 13. In light of above settled legal proposition the evidence produced before the trial Court is required to be examined. It appears from the evidence that according to the complainant, the accused gave the cheque in question towards discharge of liability of price of grains purchased by him. The accused challenged the transaction. In the cross-examination the accused was able to bring on record that there was no documentary evidence to show the transaction. It also emerges that earlier the accused made payment to the complainant through witness Chandrakantbhai. It is true that no documentary evidence is produced by the accused to show payment to Chandrakantbhai but at the same time it also emerges that the complainant used to get cheques to secure payment when the accused did not make cash payment. The evidence of the complainant also reveals that the cheques obtained to secure payment were not returned to the accused even after payment and such cheques remained with the complainant. In view of the fact that the complainant did not return the cheques taken as security despite payment, possibility of misuse of such cheque cannot be ruled out. As no documentary evidence is produced to show the transaction and outstanding amount, the accused was able to bring on record circumstances which make it doubtful that there was transaction of sale and purchase of grains and the cheque amount was payable by the accused as claimed by the complainant. Therefore, except bare words no documentary evidence was produced to show the existence of legally recoverable debt. The accused raised defence that he made the payment for the goods purchased by him to the broker Chandrakantbhai but failed to prove such payment. However, the cross-examination of the complainant indicates that the accused was able to rebut the presumption and raise probable defence that there was no existence of legally recoverable debt or liability. Therefore, the burden shifted on the complainant to prove that the cheque in question was given towards discharge of legally recoverable debt or liability. The complainant did not produce any documentary evidence to show that there was transaction of sale and purchase of grains and the cheque in question was given towards discharge of outstanding amount of such transaction. Therefore, the trial Court was justified in acquitting the accused. 14. The complainant did not produce any documentary evidence to show that there was transaction of sale and purchase of grains and the cheque in question was given towards discharge of outstanding amount of such transaction. Therefore, the trial Court was justified in acquitting the accused. 14. In the decision Of Tribhuvan Nath v. The State Of Maharashtra ( AIR 1973 SC 450 ) (supra), Hon'ble Supreme Court ruled that when an accused voluntarily steps in the witness box as a witness in defence and he is cross-examined, the evidence brought out in such cross-examination can be used against his co-accused. In the facts of the present case this decision cannot be made applicable. 15. In the decision of Kamala S. v. Vidhyadharan M. J. (AIR 2007 SC (Supp) 1142 (supra) relied on by learned advocate Mr. Kinariwala, Hon'ble Supreme Court ruled that the accused has to rebut the presumption on preponderance of probability. In the fact of this case, as observed earlier, the accused was able to rebut the presumption by preponderance of probability as ruled in this decision. 16. In the decision of M/s. Kumar Exports v. M/s. Sharma Carpets ( AIR 2009 SC 1518 ) (Supra) Hon'ble Supreme Court reiterated law with regard to presumption under Section 139 of the Act. In the said decision the complainant did not produce any evidence to show that there was transaction of sale of carpets and therefore the Court held that there was no existence of debt. In the present case, the facts are similar as the complainant failed to produce any evidence to show the sale and purchase of grains and to prove existence of legally recoverable debt. 17. In the decision of Mohan Singh v. Prem Singh ( AIR 2002 SC 3582 )(Supra) Hon'ble Supreme Court held that statement made by the accused under Section 313 of the Code of Criminal Procedure can lend credence to evidence led by prosecution but it cannot be made sole basis for conviction. In the facts of the present case, this decision cannot be made applicable. 18. In the decision of State Of Haryana v. Shibu Alias Shiv Narain reported in AIR 2009 SC (Supp) 609 relied on by learned advocate Mr. Kinariwala, the facts are different and therefore the same is not applicable to the present case. 19. In view of above, learned advocate Mr. 18. In the decision of State Of Haryana v. Shibu Alias Shiv Narain reported in AIR 2009 SC (Supp) 609 relied on by learned advocate Mr. Kinariwala, the facts are different and therefore the same is not applicable to the present case. 19. In view of above, learned advocate Mr. Patel for the appellant failed to point out any legal infirmity in the impugned judgment. Therefore, the present appeal is required to be dismissed and accordingly it is dismissed. Appeal Dismissed.