Judgment The appeal questions validity and legality of the Judgment and order of acquittal recorded by learned 24th Judicial Magistrate, First Class and Special Judge under Section 138 of the Negotiable Instruments Act, at Nagpur. 2. The facts, briefly stated, are thus:- The complainant stated that the accused is a close friend of her husband and since a long period, had requested for loan for his business in the sum of Rs. Two lacs, which was paid in cash on 15/01/2005. Loan Agreement was executed on a stamp paper in the denomination of Rs.100/-in presence of two witnesses. The accused had promised to repay the amount as early as possible. The accused had, in order to discharge his liability in part and as an installment, had issued a Cheque of Rs.10,000/-bearing No.594169, dated 02/12/2008 drawn upon the UCO Bank, Mount Road extension, Nagpur for encashment. The said Cheque was presented for encashment to the Union Bank of India, Katol Road, Nagpur. It was returned dishonored with remarks "insufficient Funds" and with an intimation memo, dated 20/05/2009. Demand notice was issued on 17/06/2009 by Registered Post A/D., which was received by the accused on 23/06/2009, but the accused failed to pay the amount, as demanded. By reply dated 30/06/2009, the accused disputed the liability. Thus, the complaint came to be lodged for the offence punishable under Section 138 of the Negotiable Instruments Act. The finding that the Cheque in question was issued on 02/12/2008 in discharge of legally enforceable liability was answered in favour of the complainant. Furthermore, the said Cheque amount demanded by the demand notice dated 17/06/2009 is also held proved. The trial court held that the complainant has failed to prove the fact that the Cheque was returned dishonored with remark "Insufficient funds". 3. Learned Advocate for the appellant, who assailed the finding of the trial Court below Issue no.2, submitted that the learned trial Magistrate committed an error of law while appreciating the evidence on record. According to the learned Advocate, the trial Court completely overlooked the fact that the return memo was produced as also relevant witness from the UCO Bank Shri Rakesh Diwan was examined on behalf of the Complainant, who deposed that the Cheque was returned dishonored for want of sufficient funds. Extracts from the Bank accounts during the period between 01/01/2008 to 08/05/2010 (Ex.41) were produced. Extracts from the Bank accounts during the period between 01/01/2008 to 08/05/2010 (Ex.41) were produced. There was an entry of debit of Rs.125/-in the Bank account of the drawer regarding the charges for return of the Cheque in question. Much capital can not be made of the clerical lapse that seems to have occurred. The Cheque number on Ex.17 is 594169, while return memo mentioned another number as 574169. The question which arises is as to whether the digit 7' mentioned instead of 9' in cheque number by the Bank can lead to the finding that the Cheque was not returned. Shri.Rakesh Diwan who is Assistant Manager in the UCO Bank, Mount Road branch at Nagpur deposed that the Bank had issued Cheque Ex.17. The extracts from the Bank account of Padole (drawer) for the relevant period of 1/1/2008 to 8/5/2010 (Ex.41) was also produced. The fact that the Cheque Ex.17 was issued and the same was sent to the Union Bank of India for collection at UCO Bank and it was dishonored for the reason of insufficient funds in the account of the accused is in evidence. The clerical mistake or lapse of mentioning the figure 7' instead of figure 9' in the document of return memo had occurred. That wrong was fairly admitted by the witness from the Bank, but it can not help the accused to contend to the extent that the cheque was not returned dishonored from the bank and so the complaint shall be dismissed. The Cheque return charges of Rs.125/-was debited on 20/05/2009 from the account of the drawer Shri Bhujang Padole (Ex.41). This vital fact in the documentary evidence was completely ignored by the learned trial Judge. There is an evidence of issuance of the Cheque book also from which the Cheque in question issued by the drawer Shri Padole. Thus, there was sufficient evidence to prove that the Cheque in question had, in fact, been returned dishonored. There was no rebuttal of this evidence from the accused except pleading bare denial of the transaction. For all these reasons, it must be concluded that the trial Court erroneously held against the Complainant that he had failed to prove the fact of dishonor of the Cheque in question. 4. There was no rebuttal of this evidence from the accused except pleading bare denial of the transaction. For all these reasons, it must be concluded that the trial Court erroneously held against the Complainant that he had failed to prove the fact of dishonor of the Cheque in question. 4. Learned Advocate for the respondent/accused, on the other hand, contended that comparatively speaking -the standard of proof upon the complainant is heavier than the accused as he has to prove the offence beyond reasonable doubts, or else his failure to prove the essential ingredients of the offence entails dismissal of the complaint. He made a reference to the rulings in the cases of Sandeep Shirodkar vs. Shankar Dhawaskar and anr. reported in 2011 (4) AIR Bom R 303 (Goa Bench) and Sanjay Mishra vs. Kanishka Kapoor @ Nikki and anr. reported in 2009 (4) Mh.L.J. 155 to argue that when unaccounted cash was advanced by the Complainant (not Shown in Income tax return of the Complainant assessee) in violation of section 269 of the Income Tax Act, it was not an legally enforceable debt and therefore, the accused was entitled for an order of acquittal. 5. However, it appears that the contention advanced now on behalf of the accused was not at all raised at any stage of the trial in this case by the respondent-accused. In an appeal by the complainant, it would not be proper to allow the accused to raise the new contention which was never raised in the trial court. Even otherwise, the legal position is that once the accused admits his signature on the Cheque, one has to start with statutory presumption in favour of the complainant under Section 139 of the Act that the Cheque in question was issued for the discharge of debt or liability, which includes legally enforceable debt or liability (Vide Para 14 in the ruling in the case of Rangappa vs. Mohan AIR 2010 SC 1898 ). The reverse onus clause is included to further the object of the legislature to improve credibility of the commercial transactions based upon the negotiable instruments. The accused is, therefore, required to rebut the statutory presumption. The reverse onus clause is included to further the object of the legislature to improve credibility of the commercial transactions based upon the negotiable instruments. The accused is, therefore, required to rebut the statutory presumption. For this purpose, the accused may not examine himself on oath or solemn affirmation because in a criminal case he has constitutional right to remain silent, but by bringing material on record through cross-examination of the complainant and his witnesses or otherwise on the basis of the material brought by the complainant, if the accused can raise a defense and establish upon preponderance of probabilities citing the evidence, fairly and reasonably tending to show that real fact is not as presumed and there was no existence of any legally enforceable liability or debt, then one may say that the accused has rebutted the statutory presumption so as to shift back the burden of proof upon the complainant. At this stage, when the statutory presumption stands terminated, the trial judge is obliged to act impartially and if it is needed, he shall call upon the complainant to adduce necessary convincing evidence because the burden has shifted back upon the shoulder of the complainant to establish beyond reasonable doubts that the cheque was, in fact, issued for the discharge of legally enforceable debt or liability, which was dishonored and remained unpaid. 6. I have examined the record and proceedings and the rulings cited. The fact that the Cheque in question had been returned dishonored is sufficiently proved by trustworthy evidence of the Appellant. The rulings cited by the respondent/accused can not come to the rescue of the respondent/accused as he never raised any contention in the trial that the complainant had advanced unaccounted money to him under the agreement. The complainant had examined bank employee Shri Rakesh Diwan to prove that the Cheque had been returned dishonored from the Bank. Hence, the finding of the learned trial Magistrate to Issue no.2 was unreasonable and erroneous. To prevent miscarriage of justice, the appeal must be allowed. 7. In the result, the appeal is allowed. The impugned judgment and order of acquittal dated 02/07/2010 passed by the 24th Judicial Magistrate, First Class & Special Court under Section 138 of the Negotiable Instruments Act, Nagpur in Summary Criminal Case No.11200 of 2009 is hereby set aside. To prevent miscarriage of justice, the appeal must be allowed. 7. In the result, the appeal is allowed. The impugned judgment and order of acquittal dated 02/07/2010 passed by the 24th Judicial Magistrate, First Class & Special Court under Section 138 of the Negotiable Instruments Act, Nagpur in Summary Criminal Case No.11200 of 2009 is hereby set aside. The accused is held guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. 8. At this stage, the learned Advocate for the respondent/accused is heard on the point of sentence. He prayed for lenient view. While the learned Advocate for the appellant prayed for stern sentence. I think that the accused must receive appropriate sentence while taking care of realisation of cheque amount by the complainant. The accused shall undergo sentence till rising of the Court and pay the amount of Cheque in the sum of Rs.10,000/-plus fine in the sum of Rs.1000/-and the cost of the proceedings, failing which -the entire amount shall be recoverable as fine and it be paid to the complainant as compensation. In default of payment as ordered, the respondent/ accused to undergo Imprisonment for three months. The accused shall surrender before the trial Court within four weeks to receive the sentence to be executed by the trial Court. The record and proceedings be sent to trial Court forthwith.