Judgment Bankim N. Mehta, J.—The appellant original complainant has preferred this appeal under Section 378 of Criminal Procedure Code, 1973 and challenged the judgment and order of acquittal passed by learned 7th Additional Senior Civil Judge and J.M.F.C., Bhavnagar on 21/8/2008 in criminal Case No. 602/2007 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instrument Act. 2. According to the complainant, he was the owner of Aditya Fiber Factory at Dholaka. It was agreed between him and the accused to demolish boundary wall, two gates and other things except the machineries lying at Aditya Fiber Factory for Rs. 10,21,000/-. The accused gave Rs. 95,000/- in cash and cheque No. 260214 dated 15/9/2006 for Rs. 3,66,000/- drawn on Indusin Bank, Ahmedabad branch for the same and it was agreed that the remaining amount would be paid as and when the material is lifted. The said cheque returned dishonoured on 18/9/2006 on account of insufficient funds. The accused has informed about return of the cheque unpaid. Therefore, the accused informed him to present the cheque before 1st December, 2006 and assured that the cheque would be cleared and requested not to obstruct him from lifting the material. Therefore, he permitted the accused to lift the material. The cheque was again presented in the Bank on 29/11/2006 but it returned unpaid with the endorsement of insufficient funds and he came to know about the same through the bank on 1/12/2006. Therefore, notice dated 11/12/2006 through advocate was sent to the accused, who received the same but did not reply nor paid the amount of unpaid cheque. The accused by filing civil suit tried to raise false defence as the cheque returned unpaid and the accused failed to make the payment of unpaid cheque. Therefore, complaint under Section 138 of the Act was filed. 3. The Trial Court issued summons and the accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. At the end of recording of evidence, the incrementing circumstances appearing in the evidence against the accused were explained to him. The accused, in his further statement recorded under Section 313 of the Criminal Procedure Code, 1973 stated that the deal was made for Rs. 8,21,000/- but it was increased to Rs. 10,21,000/-. Thereafter, Rs. 25,000/- and Rs. 70,000/- in cash were given and only Rs. The accused, in his further statement recorded under Section 313 of the Criminal Procedure Code, 1973 stated that the deal was made for Rs. 8,21,000/- but it was increased to Rs. 10,21,000/-. Thereafter, Rs. 25,000/- and Rs. 70,000/- in cash were given and only Rs. 1,50,000/- remains payable and is prepared to pay the same. The accused did not examine any witness in his defence but produce certain documents. However, these documents were not admitted in the evidence as the accused did not prove the documents. After hearing the learned advocate for the parties, the Trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal. 4. I have heard learned advocate Mr. Oza for the appellant, learned advocate Mr. Raval for respondent accused and learned APP Ms. Shah for the state at length and in great detail. I have also perused the impugned judgment and record and proceedings of the Trial Court. 5. Learned advocate Mr. Oza submitted that there was an agreement between the accused and the complainant to demolish the structure standing at the factory premises and to lift the material. Pursuant to that agreement some amount in cash was given to complainant and cheque for part of remaining amount was given which bounced. Therefore, the complainant proved that the cheque was given towards discharge of liability in part and hence presumption under Section 139 of the Act is required to be drawn. He further submitted that the entire deal was entered into between the parties through Broker Mr. Gupta and as agreed between the parties, the accused was permitted to lift the material. Therefore, it was proved that the material was sold to the accused who received the same and cheque was given towards purchase of the material. The accused failed to rebut the presumption and therefore the trial court committed an error in acquitting the accused. He relied on the decisions in case of Rangappa vs. Shri Mohan, reported in AIR 2010 SC 1898 and in case of Anil Sachar & Anr vs. M/s Shree Nath Spinners, reported in AIR 2011 SC 2751 . 6. Learned advocate Mr. Raval submitted that the accused was able to raise a defence and rebut the presumption. He relied on the decisions in case of Rangappa vs. Shri Mohan, reported in AIR 2010 SC 1898 and in case of Anil Sachar & Anr vs. M/s Shree Nath Spinners, reported in AIR 2011 SC 2751 . 6. Learned advocate Mr. Raval submitted that the accused was able to raise a defence and rebut the presumption. He also submitted that the suit was filed in respect of the transaction between the parties and therefore the Trial Court was justified in acquitting the accused. Learned advocate Mr. Raval submitted that depsite the agreement between the parties, the complainant sold the goods to third party. Therefore, payment was refused to the complainant, therefore, the Trial Court was justified in acquitting the accused. He also submitted that the complainant failed to prove legal debt, therefore, the Trial Court was justified in passing the impugned order. No other submissions were advanced by learned advocate Mr. Raval. 7. It appears from the allegations made in the complaint that work of demolition of boundary wall, two gates and the other things except the machineries lying on the factory of Aditya Fiber was assigned to the accused in Rs. 10,21,000/- and against such work, the accused paid Rs. 95,000/- in cash to the complainant and gave cheque in question to the complainant. The allegations also indicate that it was agreed that the remaining amount would be paid as and when the material is lifted. This allegations clearly indicate that the accused was assigned the work of demolition and removal of the material from the factory. The accused pursuant to this understanding gave cheque in question to the complainant. In order to prove the offence, the complainant examined himself at Exh 12. In the cross examination, the complainant deposed that the accused gave cheque in question for the materials given to him. The witness also deposed that the agreement with the accused was made through Broker Mr. Gupta and Mr. Gupta made the deal with the accused on their behalf on 28/8/2006 and he had accepted the deal. The witness also deposed that the accused gave the cheque in question towards remaining sale consideration as deposit and it was to be returned on payment. The witness also deposed that the work of demolition was assigned to Broker Mr. Gupta. 8. Gupta made the deal with the accused on their behalf on 28/8/2006 and he had accepted the deal. The witness also deposed that the accused gave the cheque in question towards remaining sale consideration as deposit and it was to be returned on payment. The witness also deposed that the work of demolition was assigned to Broker Mr. Gupta. 8. In view of the above evidence, it emerges that the work of demolition was given to Broker Mr. Gupta and Mr. Gupta entered into a deal with the accused on behalf of the complainant, which deal the complainant approved. The allegations in the complaint indicate that the accused was assigned the work of demolition and lifting of material and the cheque in question was given for such work. However, in oral deposition, the witness deposed that the cheque in question, was given by the accused as deposit for the purchase of material and the cheque was to be returned to the accused on payment by him. The prosecution did not produce any documentary evidence to prove the agreement between the parties. The prosecution did not examine said Shri Gupta to prove the agreement. Therefore, it becomes doubtful that the work of demolition and lifting of material was assigned to the accused and cheque in question was given towards such work. Under Section 139 of the Act, it shall be presumed that unless the contrary is proved that holder of a cheque receive the cheque for the discharge in whole or in part of any debt or other liability. It is settled proposition that presumption in the said provision is rebutable presumption and when the accused has to rebut the presumption 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 existence of legally recoverable debt or liability, the prosecution can fail and it is not necessary that in order to prove the defence the accused is required to enter into witness box or lead evidence. The accused can rely on the materials submitted by the complainant. In the present case, it appears from the evidence that the accused was able to rebut the prosecution and raise a probable defence that there was no legally recoverable debt. The accused can rely on the materials submitted by the complainant. In the present case, it appears from the evidence that the accused was able to rebut the prosecution and raise a probable defence that there was no legally recoverable debt. The burden shifted on the compliant that there was an agreement with the accused and the cheque was given for the work under agreement. Even there is variance between the prosecution case with regard to cheque in question as the complainant in oral evidence deposed that the cheque in question was given for the material sold to the accused. Therefore, the complainant failed to discharge his burden to prove that work of demolition the gates except the machineries and lifting of material was assigned to the accused and cheque in question was given for such work. In view of this evidence, in my view, the complainant failed to prove that cheque in question was given by the accused towards discharge of his liability as claimed in the complaint. It is also settled proposition that presumption raised in favour of holder of cheque does not extend to the extent that the cheque was given for discharge of any debt or liability, it is required to be proved by the complainant, but in present case, the complainant failed to prove the debt. 9. In the decision in case of Rangappa vs. Shri Nath, reported in AIR 2010 SC 1898 , Honourable Supreme Court laid down the law with regard to presumption under Section 139 of the Act. The principle laid down in the said decision indicates that if the accused is able to raise probable defence which creates doubt about the existence of legally enforceable debt or liability, the prosecution can fail. In the present case, the accused was able to raise probable defence, which creates doubt about existence of legally enforceable debt. Therefore, this decision does not render any assistance to the complainant. 10. In the decision in case of Anil Sachar & Anr vs. M/s Shree Nath Spinners, reported in AIR 2011 SC 2751 , Honourable Supreme Court has re-iterated the principles of presumption under Section 139 of the Act. In the facts of this case, this decision also does not help the appellant. 11. 10. In the decision in case of Anil Sachar & Anr vs. M/s Shree Nath Spinners, reported in AIR 2011 SC 2751 , Honourable Supreme Court has re-iterated the principles of presumption under Section 139 of the Act. In the facts of this case, this decision also does not help the appellant. 11. In view of the above, it emerges that the complainant failed to prove that work of demolition and removing material was assigned to the accused and cheque in question was given towards discharge of such liability. Therefore, the Trial Court was justified in recording that the complainant failed to prove the debt. Learned advocate Mr. Oza failed to point out any infirmity in the impugned judgment. In the result, appeal fails and stands dismissed. P P P P P