Judgment : This appeal is filed against the Judgment and order of SCC No.1378/2001 which was pending before the Judicial Magistrate, First Class, Akola. In a private complaint filed by the appellant, the respondent is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1847 (hereinafter referred to as "The Act"). 2. Both the sides are heard. This court has perused the original record. 3. The original complainant, the appellant is a Credit Cooperative Society registered under the Maharashtra Cooperative Societies Act. The loan was given of the nature of cash credit to the accused by the Society and its limit was Rs. 2 lacs. Accordingly, account was opened. As the accused committed default and as he was in dues of the amount of Rs. 3,33,607/-, on the demand made by the Society, the accused gave a cheque of this amount on 23.12.2000. This cheque was presented for encashment by the Society but the cheque bounced with remark "Funds Insufficient". The Society followed the procedures laid down under the Act and then filed a private complaint. 4. In the trial Court, the Society examined its employee, who was given power and authority in a resolution by the Society to represent it in the proceedings. The relevant documents like the original cheque, bank memo, office copy of the notice, envelop in which the demand notice was sent by RPAD, were produced. In the defence the accused examined himself and he examined one witness Mr. Mahendra. 5. The accused took various defences like cheque was given by way of security when the loan was given, there was no legal enforceable liability in respect of the amount mentioned in the cheque, absence of statutory demand notice and absence of authority to the witness who was examined. The Judicial Magistrate, First Class has acquitted the accused by holding that the accused has proved that the cheque was given by way of security when the loan was given. The Judicial Magistrate, First Class has further held that there was no legally enforceable liability in existence in respect of the cheque amount. 6. It is true that in Section 138 of the Act, it is provided that for proving the offence, the complainant is required to prove that cheque was issued as against the legal enforceable debt or liability. The Judicial Magistrate, First Class has further held that there was no legally enforceable liability in existence in respect of the cheque amount. 6. It is true that in Section 138 of the Act, it is provided that for proving the offence, the complainant is required to prove that cheque was issued as against the legal enforceable debt or liability. In this regard the statutory presumption is made available in Section 139 of the Act. In the cases reported as K.N. Beena vs. Muniyappan (AIR 2001 Supreme Court 2895) and Hiten P. Dalal vs. Bratindranath (Air 2001 Supreme Court 3897) the Apex Court has discussed nature of burden which is created by Section 139 of the Act. It is also observed by the Apex Court that only the foundation is required to be created by the complainant by giving evidence in respect of the debt or liability and after that presumption becomes available. The Apex Court has interpreted Section 139 of the Act and it is laid down that the burden created by this Section is much more than the burden which is generally created by the provisions like Section 114 of the Evidence Act. When for rebutting the burden created by Section 114 of the Evidence Act, the accused can give only reasonable and probable explanation, for rebutting the burden created by Section 139 of the Act, the accused is required to show that his case is more probable than the case of the complainant. Thus, only giving of reasonable and probable explanation is not sufficient in such a case. In view of this position of law, it is up to the accused to show that there was no legally enforceable liability as such on the date of the cheque. 7. The accused has given evidence that he had given blank cheque when the loan was sanctioned. The record produced before the Judicial Magistrate, First Class, shows that the cash credit loan account was there right from the year 1996. The cheque bears number and so the accused could have shown by examining some witnesses that the cheques bearing subsequent numbers were used by him in the year 1996. No such evidence is given. In view of the nature of transactions also it does not look probable that cheque was issued in the year 1996. The cheque bears number and so the accused could have shown by examining some witnesses that the cheques bearing subsequent numbers were used by him in the year 1996. No such evidence is given. In view of the nature of transactions also it does not look probable that cheque was issued in the year 1996. In spite of these circumstances, the trial court has held that the accused has created probability that the cheque was given for the security at the time of the loan transaction. 8. The Judicial Magistrate, First Class, has considered the account statement produced by the complainant Society. The account statement shows that as on 2.1.2001 the liability towards the debt was shown as Rs. 3,21,427.50/-. The Judicial Magistrate, First Class has not considered the other relevant circumstances in this regard. It is the case of the complainant that cheque was issued in respect of the amount which had become due as on the date of cheque i.e. on 23.12.1996. The account statement shows that the interest was calculated by the Society after every six months. The previous occasion when interest was calculated in respect of this account was 30.9.2000. It appears that the interest and penal interest were both charged on 30.9.2000. The interest of more that Rs. 30,000/-was shown as debited in the account of the accused. The next date on which the interest was calculated and debited in the account was 31.3.2001 and on that occasion the interest as around Rs. 32,000/-was calculated. Thus, if it is presumed that the interest had become due after 30.9.2000 till the date of the cheque that 23.12.2000, for this period of 3 months, interest would have been certainly around of Rs. 14,000/-. Thus, even without exact calculation one can easily infer that as on 23.12.2000 there was a liability of Rs. 3,33,607/-. No such attempt was made to calculate the interest which had become due by the Judicial Magistrate, First Class. The Judicial Magistrate, First Class could have given a direction to the Complainant Society in that regard if it was not in a position to ascertain the interest. As there was account statement and as there was such procedure, it needs to be presumed that the cheque was issued as against the existing liability. Thus, on both the contents, the Judicial Magistrate, First Class has committed error. 9. As there was account statement and as there was such procedure, it needs to be presumed that the cheque was issued as against the existing liability. Thus, on both the contents, the Judicial Magistrate, First Class has committed error. 9. For the respondent accused, one case reported as Shingara Singh vs. State of Haryana and another (AIR 2004 Supreme Court 124) was cited and it was submitted that the view taken by the Judicial Magistrate, First Class is a possible view and so this court is not expected to interfere in the decision of the Judicial Magistrate, First Class. The aforesaid discussion shows that relevant material is not properly and completely considered by the Judicial Magistrate, First Class and on the basis of some irrelevant consideration the Judicial Magistrate, First class has decided the case. It is observed that it is the duty of the appellate court to go through the evidence and appreciate the evidence. So, this case is of no help to the respondent. 10. One more case reported as M.S. Narayana Menon @ Mani vs. State of Kerala and another, ((2006) 6 Supreme Court Cases 39) was cited for the accused. In this case, in view of the facts of that case the apex court held that there was no existing liability when the cheque was issued and it was probably issued by way of security. Due to inaction on the part of the complainant to produce some record, adverse inference was also drawn. The facts were different. In view of the facts of this case, this court has no hesitation to hold that the trial court has committed error in deciding the aforesaid two points against the complainant. 11. Alternatively, it was submitted for the accused that the other points raised by the accused are not decided by the Judicial Magistrate, First Class and so in stead of giving final decision in the matter, the matter can be remanded to the Judicial Magistrate, First Class for giving decision on the remaining points also. The points raised by the accused during the cross examination and during the arguments before the Judicial Magistrate, First Class, are already quoted. The defence is of absence of statutory notice and absence of necessary authority in favour of the witness who is examined for the complainant. The points raised by the accused during the cross examination and during the arguments before the Judicial Magistrate, First Class, are already quoted. The defence is of absence of statutory notice and absence of necessary authority in favour of the witness who is examined for the complainant. These points are not discussed by the Judicial Magistrate, First Class and the findings on these points are not given. In view of this circumstance, this court holds that the matter can be remanded back and direction can be given to the Judicial Magistrate, First Class to decide the matter again and give decision on the remaining points also. At the time of the decision, the Judicial Magistrate, First Class can consider the amount which remains as due on the date of the decision for imposing penalty. In view of the time taken for the decision of the matter subsequent events can be considered if the accused is convicted in the case. 12. In the result, the appeal is partly allowed. The Judgment and order dated 29.4.2008 passed by the Judicial Magistrate, First Class, Akola in S.C.C. No.1378/2001 is hereby quashed and set aside. The matter is remanded back to the Judicial Magistrate, First Class, Akola for fresh decision. The Judicial Magistrate, First Class, Akola to hear both the sides again and may consider any documentary material which may be filed in view of the subsequent events. Only in respect of those documents, if required, opportunity can be given to the parties to lead evidence and then matter is to be decided. The parties are to appear before the Judicial Magistrate, First Class, Akola on 20.6.2012 and the Judicial Magistrate, First Class, Akola is to expeditiously dispose of the matter and in any case within two months from the date of appearance of the parties.