Judgment : Heard Mr. Shirodkar, learned Counsel appearing on behalf of the appellant, Mr. Agni, learned Counsel appearing on behalf of the respondent no.1/accused and Mrs. Pinto, learned Additional Public Prosecutor appearing on behalf of respondent no. 2. 2. This appeal takes exception to the Judgment and Order dated 07/07/2011 passed by the learned Judicial Magistrate, First Class, Sattari at Valpoi in Criminal Case No. 61/OA/2010. 3. The appellant was the complainant, whereas respondent No. 1 was the accused in the said case. The parties shall hereinafter be referred to in the manner in which their names appear in the cause title of the said criminal case. 4. The complainant had filed the complaint against the accused for offence punishable under section 138 of the Negotiable Instruments Act, 1881 (“The Act”, for short). 5. The case of the complainant, in short, was as follows: The accused is his relative and a Government employee and needed money and approached the complainant requesting for personal loan of Rs.4,00,000/- (Rs. Four lakhs only). However, the accused borrowed a sum of Rs.3,40,000/- (Rs. Three lakhs forty thousand only) from the period from July 2007 till January 2008 on six different dates. The amount of Rs.60,000/- (Rs. Sixty thousand only) was borrowed on 10/7/2007, Rs. 90,000/- (Rs. Ninety thousand only) was borrowed on 16/8/2007, Rs.70,000/- (Rs. Seventy thousand only) was borrowed on 3/9/2007, Rs. 40,000/- (Rs. Forty thousand only) was borrowed on 6/10/2007, Rs.55,000/- (Rs. Fifty Five thousand only) was borrowed on 24/12/2007 and Rs.25,000/- (Rs. Twenty Five thousand only) was borrowed on 25/1/2008. The accused promised to repay the total amount within six months i.e. on/or before 30/6/2008. The accused paid Rs.20,000/- (Rs. Twenty thousand only), but failed to pay the balance amount and subsequently issued a cheque of Rs.40,000/- (Rs. Forty thousand only). However, the said cheque was dishonoured and a criminal complaint was filed. Before the said case came for verification, the accused paid the entire cheque amount. On 5/7/2010, the accused executed an acknowledgment of debt whereby he agreed to repay the amount of Rs.3,20,000/- (Rs. Three lakhs twenty thousand only) in different installments on different dates. The accused failed to pay the installments amounting to Rs.2,80,000/- (Rs. Two lakhs eighty thousand only), but issued two cheques, one bearing no. 011081 dated 30/12/2009 and the other bearing no. Three lakhs twenty thousand only) in different installments on different dates. The accused failed to pay the installments amounting to Rs.2,80,000/- (Rs. Two lakhs eighty thousand only), but issued two cheques, one bearing no. 011081 dated 30/12/2009 and the other bearing no. 011082 dated 02/01/2010, both drawn on Goa State Cooperative Bank Poriem Branch for Rs.2,00,000/- and Rs. 1,40,000/-, respectively, towards the repayment of the liability including interest of Rs. 60,000/-, in favour of the complainant. However, when the said cheques were presented for encashment, they were returned with the remark “insufficient funds”. Thereafter, the demand notice was sent to the accused on 28/5/2010, which was duly received by him on 3/6/2010, but the accused failed to reply or to comply with the same. In the circumstances above, the said complaint, registered as C. C. 61/OA/2010, came to be filed. 6. After issuance of process, the substance of accusation was explained to the accused who pleaded not guilty. The complainant examined himself as PW.1 and produced the following documents: (i) Cheque dated 30/12/2009 for Rs.2,00,000/- along with cheque return memo (Exhibit 18-colly), Cheque dated 2/1/2010 for Rs.1,40,000/- along with cheque return memo (Exhibit 19-colly), copy of demand notice dated 28/5/2010 along with acknowledgment card (Exhibit 20), letter/acknowledgment of debt (Exhibit 21), letter from Sanquelim Urban Credit Society dated 30/4/2010 (Exhibit 22). 7. The case of the accused was of denial simplicitor. He did not step into the witness box nor did he examine any witness. 8. Upon consideration of the entire evidence on record, the Learned Trial Magistrate came to the conclusion that the total amount of both the cheques exceeds the actual debt i.e., the balance loan amount, as claimed by the complainant himself. The learned Magistrate held that the accused succeeded in rebutting the statutory presumption and the complainant failed to prove his case beyond reasonable doubt. The accused, therefore, came to be acquitted of the offence punishable under section 138 of The Act. 9. The Learned Counsel appearing on behalf of the complainant submitted that the letter of acknowledgment which is at Exhibit 21 clearly specifies that the accused owed a sum of Rs.3,20,000/- to the complainant and further also interest from the year 2007 on the said sum of Rs.3,20,000/-. 9. The Learned Counsel appearing on behalf of the complainant submitted that the letter of acknowledgment which is at Exhibit 21 clearly specifies that the accused owed a sum of Rs.3,20,000/- to the complainant and further also interest from the year 2007 on the said sum of Rs.3,20,000/-. According to him, the amount of cheques which are the subject matter of the complaint, aggregating to Rs.3,40,000/- includes the principal amount and the interest as acknowledged in the said letter at Exhibit 21. He submitted that there are statutory presumptions under section 118 and 139 of The Act in favour of the complainant. According to him, when the accused has given the cheques and execution thereof is not disputed, the total amount of both the cheques is the legally enforceable debt. He submitted that the first opportunity to the accused to rebut the said presumptions was after he received the statutory notice issued to him by the complainant under section 138 (b) of the Act. He submitted that though the accused received the said notice, he did not reply to the same thereby denying the liability. The learned Counsel contended that the Court is bound to draw adverse inference against the accused for having not replied the statutory notice. He further submitted that during the course of statement under section 313 Cr. P.C., the accused had another opportunity to explain about his case. He pointed out that except mere denials there is nothing in the statement of the accused under section 313 of Cr. P. C.. He then submitted that the third opportunity for the accused was to establish his case in the cross examination of the complainant and the last opportunity was to step into the witness box and state about his case. The learned Counsel, appearing on behalf of the complainant, submitted that the accused has miserably failed to rebut the presumptions. He, therefore, urged that the impugned judgment and order of acquittal is not only erroneous but perverse and is liable to be quashed and set. He urged that the impugned Judgment and order be set aside, accused be held guilty of the offence and be appropriately sentenced. 10. Learned Counsel appearing on behalf of the complainant relied upon the following judgments: (a) Yogendra Bhagatram Sachdev Vs. State of Maharashtra & another [2003 Bom. C. R. (Cri.) 810] (b) Bapurao Motiram Mankar Vs. He urged that the impugned Judgment and order be set aside, accused be held guilty of the offence and be appropriately sentenced. 10. Learned Counsel appearing on behalf of the complainant relied upon the following judgments: (a) Yogendra Bhagatram Sachdev Vs. State of Maharashtra & another [2003 Bom. C. R. (Cri.) 810] (b) Bapurao Motiram Mankar Vs. Vyankatesh Housing Agency & anr., [2010 (2) Bom. C.R. (Cri.) 330]. (c) K. N. Beena Vs. Muniyappan and another, [(2001) 8 Supreme Court Cases 458]. (d) Rangappa Vs. Sri Mohan, [(2010) 11 Supreme Court Cases 441]. 11. On the other hand, the learned Counsel appearing on behalf of the accused pointed out that in his cross-examination, the complainant (PW.1) has specifically stated that the accused had paid to him an amount of Rs.20,000/- till date. He invited my attention to the complaint and, more particularly, to paragraph 6 thereof, wherein it is mentioned that an amount of Rs.40,000/- was paid towards the first installment, after the case for dishonour of cheque with respect to the said first installment, was filed. He, therefore, submitted that admittedly, according to the complainant, Rs.60,000/- was already paid to the complainant. He submitted that there is, therefore, a cloud of doubt over the case of the complainant since the complainant is not certain about the debt. He further pointed out that in paragraph 4 of the complaint, the date of the letter of acknowledgment is mentioned as 8/7/2009 and again in the statutory notice dated 28/5/2010 also there is mention of the letter of acknowledgment dated 8/7/2009. He, however, pointed out that what has been produced on record is the letter of acknowledgment dated 5/7/2009 thereby suppressing the letter dated 8/7/2009. He further pointed out that in the verification statement of the complainant, there is absolutely no mention about the payment of Rs.40,000/-. He also invited my attention to the letter of acknowledgment of debt dated 5/7/2009 (Exhibit 21), wherein the total sum due is mentioned as Rs.3,20,000/- and it is stated that the accused had voluntarily issued posted dated cheques for the sum of Rs.40,000/- and that he promised to issue further cheques in due course. He pointed out that insofar as the interest is concerned, the said letter shows that the accused assured to pay the entire interest by June 2010. He pointed out that insofar as the interest is concerned, the said letter shows that the accused assured to pay the entire interest by June 2010. He alleged that the first cheque is dated 30/12/2009 and the second cheque is dated 2/1/2010. According to him, since the accused had allegedly assured to pay the entire interest by June 2010, the question of including interest in the said two cheques does not arise. He pointed out from the statutory notice which is dated 28/5/2010 that in the entire notice, the amount of Rs.2,00,000/- and Rs.1,40,000/- has been mentioned as towards the acknowledged debt/liability and there is absolutely no mention of any interest. He submitted that by the said notice, the accused has been called upon to pay the sum of Rs.3,40,000/-, being the cheque amount, but without mentioning that it includes any interest. He pointed out that in the said notice at paragraph 3, it is clearly mentioned that the cheques were issued towards the refund of cash received. He, therefore, submitted that for the first time in the complaint, the story of interest of Rs.60,000/- has been introduced. He submitted that in the statement under Section 313 of Cr. P.C., the accused has denied that he had agreed to pay any interest on the said sum from 2007 till the entire sum was repaid. The learned Counsel submitted that the amounts allegedly borrowed by the accused on different dates are all more than Rs.30,000/- each and in terms of Section 269SS of the Income Tax Act, if the amount paid is more than Rs.30,000/-, the same should be paid by cheque. In this regard, he relied upon the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde [ 2008 (4) SCC 54 ]. He, therefore, submitted that this is another point which creates doubt. According to the learned Counsel, in view of the changing stands taken by the complainant, the accused was entitled to benefit of doubt and the learned Trial Magistrate has rightly acquitted the accused. According to him, therefore, no interference is possible with the impugned judgment and the appeal is liable to be dismissed. 12. According to the learned Counsel, in view of the changing stands taken by the complainant, the accused was entitled to benefit of doubt and the learned Trial Magistrate has rightly acquitted the accused. According to him, therefore, no interference is possible with the impugned judgment and the appeal is liable to be dismissed. 12. After having gone through the material on record produced by the complainant and having given consideration to the submissions made by the learned Counsel for the parties and the judgments relied upon by them, I am of the considered view that no case has been made out for interference with the impugned judgment and order. 13. The point for determination is whether the accused has been able to successfully rebut the presumptions arising out of Sections 118 and 139 of The act. 14. Section 118 of the Act provides as follows: “118. Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made:- (a) of consideration ; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer; that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsements: that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp: that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course: that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.” 15. Section 139 of The Act provides as under: “139. Section 139 of The Act provides as under: “139. Presumption in favour of holder- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.” 16. Section 269SS of the Income Tax Act has been inserted in order to check the mode of extracting loans or deposits. The object is to lessen the evasion of tax. Section 271D of the Income Tax Act provides for penalty for failure to comply with the provision of Section 269SS. In the case of “Rangappa” (supra), the Hon'ble Supreme Court has considered the judgment in the case of “Krishna Janardhan Bhat” (supra). As pointed out by the learned Counsel for the complainant, in the case of “Rangappa” (supra), the loan amount was of Rs. 45,000/-, which was advanced in cash. Yet the Apex Court accepted the case of the complainant who claimed to have made an advance of Rs. 45,000/- in cash and proceeded to uphold the conviction. Mr. Shirodkar, the learned Counsel for the complainant submitted that this point has been dealt with, in detail, by a learned Single Judge of this Court in Criminal Appeal No. 6/2012 (Mr. Krishna P. Morajkar Vs. Mr. Joe Ferrao and another). I have gone through the said judgment dated 19/7/2013 and I am in respectful agreement with the observations of the learned Single Judge of this Court, on this point. Thus, merely because the loan was advanced in cash and it was more than Rs. 30,000/-, that would not give any advantage to the accused to say that there was no transaction at all. The acquittal given by the trial Magistrate is not based on this point. 17. As has been held in the case of “Rangappa”, (supra), the presumption mandated by Section 139 of the Act includes the existence of a legally enforceable debit or liability. Therefore, in view of the provisions contained in Section 118 and 139 of The Act, the court has to presume that the cheque had been issued in discharge of a debt or liability. The said presumption could be rebutted by the accused by proving the contrary. Therefore, in view of the provisions contained in Section 118 and 139 of The Act, the court has to presume that the cheque had been issued in discharge of a debt or liability. The said presumption could be rebutted by the accused by proving the contrary. It has been held the Hon'ble Apex Court in the case of “K. N. Beena”, (supra) that mere denial or rebuttal by accused in the reply to the legal notice sent by the complainant is not enough and the accused has to prove, in the trial, by leading cogent evidence that there is no debt or liability. However, as has been held in the case of “Bapurao Motiram Mankar”, (supra), the complainant is initially required to prove that the cheque was drawn by the accused upon his account in the bank for a certain sum of money on a certain date which returned dishonoured for nonpayment on account of insufficient funds, etc. and the accused has failed to pay the said amount despite service of demand notice in writing upon him, within the stipulated period. Once, the primary facts as above are averred and proved by the complainant, in such case, as required by the penal provision in Section 138 of the Act, the statutory presumptions arising are required to be rebutted by the accused by adducing satisfactory evidence which is to be tested on preponderance of probabilities. 18. In the Statutory Notice dated 28/5/2010, which is a part of Exhibit 20-colly, in paragraph 1 thereof, the complainant has specifically mentioned that the accused had borrowed Rs.3,40,000/- and in paragraph 3 that the accused had issued cheques towards the refund of the cash received by him. In the said statutory notice, there is absolutely no mention that the said amount of the two cheques includes interest allegedly of Rs.60,000/-. In the case of “Yogendra Bhagatram Sachdev”, (supra), it has been held that the failure to reply to the notice under section 138 of the Act, not been explained, would raise a presumption that the accused had, in fact, no defence whatsoever. Since the statutory notice which is a part of Exhibit 20-colly in the present case is totally silent on the inclusion of amount of Rs.60,000/-, towards interest, in the amount of the cheques, the question of explaining as to why the said notice has not been replied does not all arise. Since the statutory notice which is a part of Exhibit 20-colly in the present case is totally silent on the inclusion of amount of Rs.60,000/-, towards interest, in the amount of the cheques, the question of explaining as to why the said notice has not been replied does not all arise. The said citation, therefore, is not applicable to the present case since the complainant, as has been rightly held by the Trial Magistrate, has failed to show the existence of debt of Rs.3,40,000/- itself. Though, in paragraph 4 of the complaint, it is alleged that the accused paid only Rs.20,000/-, out of the total loan amount of Rs.3,40,000/- and in paragraph 6 thereof that the accused paid Rs.20,000/- on 19/7/1999 and the balance amount of Rs.20,000/-, on 5/7/2010 (total amount of Rs.60,000/-), however, in his verification statement, the complainant specifically stated that the accused paid only Rs.20,000/- out of the total liability of Rs.3,40,0000/-. Further, in the verification statement there is absolutely no mention about the further payment of Rs.40,000/- made by the accused. In the verification statement, there is absolutely no mention that an amount of Rs.60,000/- was towards interest. Same is the case in the Affidavit-in-Evidence filed by the complainant after issuance of process. There is absolutely no mention in this Affidavit that any amount was paid towards interest. In the cross-examination, PW.1 has specifically stated that the accused paid to him only an amount of Rs.20,000/- till date. Since according to the complainant, as per the schedule of payment, the accused had promised to pay Rs.3,40,0000/- and since subsequent to that the accused paid Rs.40,000/-, the balance ought to have been only Rs.3,20,000/-. However, the two cheques which are subject matter of this case, make a total of Rs.3,40,000/-, which is the amount beyond the alleged cash received by the accused i.e. the legally enforceable debt. 19. In the statutory notice, there is mention of letter of acknowledge dated 8/7/2009 issued by the accused. The letter of acknowledgment referred to in the complaint is also dated 8/7/2009. But what is produced on record is a letter of acknowledgment dated 5/7/2009. There is no explanation that there was some mistake in the date mentioned in the notice and in the complaint. 20. The letter of acknowledgment referred to in the complaint is also dated 8/7/2009. But what is produced on record is a letter of acknowledgment dated 5/7/2009. There is no explanation that there was some mistake in the date mentioned in the notice and in the complaint. 20. It is well settled that the standard of proof, for the accused, is preponderance of probabilities and inference of preponderance of probabilities can be drawn not only from the materials on record, but also by reference to the circumstances upon which the accused relies. The defences of the accused appear to be genuine. Merely because the accused did not reply to the statutory notice and did not state anything specifically in his statement under section 313 of Cr. P.C. and did not step into the witness box, that would not mean that he failed to discharge the burden. In such circumstance, the Trial Magistrate cannot be faulted with regard to the finding that the total cheques amount exceeds the balance loan given, as claimed by the complainant himself and therefore, the complaint fails. The accused has succeeded in rebutting the statutory presumptions. The accused has succeeded in rebutting the statutory presumptions and the learned Trial Magistrate has rightly held so. The accused, therefore, has been rightly acquitted. It is well settled that even if two views are possible, out of which, one which is in favour of the accused is plausible, the Court cannot substitute its own view only because the said view is also plausible. In my considered view, there is no perversity in the impugned judgment and order of acquittal. No case has been made out for interference with the impugned judgment and order. 21. In the result, the appeal stands dismissed.