Judgment : By this appeal, the appellant, who is the complainant in Criminal Case No.643/NI/OA-II/2003/D, takes exception to the judgment and order of acquittal dated 9/10/2009 passed by the learned Judicial Magistrate First Class, Margao (J.M.F.C, for short), in the said case. 2. The complainant had filed the said case against the accused who is the respondent no.1 in this appeal, under Section 138 of the Negotiable Instruments Act (N.I. Act, for short). The case of the complainant is that:- The complainant along with his wife executed an Agreement of Assignment with the accused on 29/1/2003 in respect of shop premises being shop no. S-5, situated on the ground floor of the building “Vishwanath Apartments”, at Borda, Margao-Goa. As per the said agreement, the complainant and his wife agreed to sell and/or assign all their rights in the said shop no. S-5 in favour of the accused for a total consideration of Rs. 4,00,000/-. The complainant was running a spare parts shop in that shop under the name and style “Laximi Auto Spares”. Towards the cost of the fixtures, furniture and goods lying in the said shop, the accused orally agreed to pay to the complainant a total sum of Rs.1,10,000/-, in due repayment of which sum, the accused handed over to the complainant three cheques drawn on the Madgaum Urban Co-operative Bank Ltd, Margao branch bearing nos. 0050232, 0050233 and 0050234 being for Rs. 40,000/-, Rs.40, 000/-and Rs. 30,000/-, respectively, which were to be presented for encashment in June 2003. As per the Agreement of Assignment dated 29/1/2003, the accused had issued, in favour of the complainant, the cheque bearing no.0124977 dated 5/2/2003 for a sum of Rs.50,000/-drawn on Union Bank of India, Ponda branch as part payment of the said amount as agreed in the said agreement. The complainant presented the said cheque for payment through its bankers, Canara Bank, Fatorda Branch, which was returned dishonoured with memorandum of Union Bank of India, Ponda branch dated 20/3/2003 with remark “Insufficient funds in the account”. The complainant orally intimated about the same to the accused and the accused assured the complainant that he would arrange for money in his account within a month and to wait till then, which request was acceded to by the complainant. The complainant orally intimated about the same to the accused and the accused assured the complainant that he would arrange for money in his account within a month and to wait till then, which request was acceded to by the complainant. However, the accused addressed the letter dated 11/4/2003 by registered A/D inter alia raising false and frivolous pleas in respect of the stipulations contained in the said agreement of assignment dated 29/1/2003 only with a view to avoid the payment of the said amount of Rs. 50,000/-and further falsely contending that the said amount was paid partly in cash and partly in cheque on different dates, when actually no such payments at any time were made by the accused to the complainant. The accused further requested to return to him the three cheques handed over to the complainant by the accused, which were drawn on Madgaum Urban Co-operative Bank Ltd, Margao branch, only to avoid payment of the amount which was liable to be paid in respect of the fixtures, furniture and goods lying in the said shop. The complainant did not return the said cheques. Thereafter, the complainant again presented the cheque dated 5/2/2003 for Rs. 50,000/-drawn on Union Bank of India, Ponda branch to his bankers, The Goa Urban Co-operative Bank Ltd., Margao branch. However, the cheque was again returned dishonoured with the memorandum of Union Bank of India dated 17/6/2003 with the remark “Insufficient funds in the account”. This time the complainant through his advocate addressed a legal notice dated 27/6/2003 to the accused inter alia demanding the payment of the cheque amount within 15 days from the receipt of the notice. The accused received the said notice dated 27/6/2003, but failed and neglected either to reply to the said notice or to make payment as demanded. Hence, the complaint. 3. In order to prove the case, the complainant examined himself as PW.1 and he produced the said cheque for Rs.50,000/-as Exhibit 38-C; the debit advice dated 22/3/03 as Exhibit 39-C; the two cheque return memos dated 17/6/2003 and 20/3/03 as Exhibit 40-C colly; the two intimations dated 21/6/2003 and 17/6/2003 as Exhibit 41-C colly and the statutory notice along with registered A/D card and postal receipt as Exhibit 42-C colly. In the cross examination of PW.1, the accused has produced the judgment, order and decree dated 7/11/2008 passed by the learned Ad hoc District Judge-I, FTC-I in Special Civil Suit No.33/2006 as Exhibit 51-C. The statement of the accused came to be recorded under section 313 of the Code of criminal Procedure. The accused did not examine any witness in his defence. 4. The learned J.M.F.C, upon assessment of the entire evidence on record, found that the agreement on which the debt is based has not been produced for the reasons best known to the complainant. She further found that the complainant had filed Regular Civil Suit for specific performance of the contract and the said suit has been dismissed observing that the specific performance of the said agreement is barred under Section 17 of the Specific Relief Act. The learned J.M.F.C. observed that a civil suit finally decides the civil rights of the parties and thus, the issue as to the enforceability of the agreement has been finally determined by a Court of competent jurisdiction and the same cannot be reopened by a court which is conducting summons trial. The learned J.M.F.C. further found that the complaint is tainted with some cryptic averments assorted with irreconcilable contradictions and hence even if the accused had only denied the case of the complainant without taking specific defence, the case of the complainant would not have the potential to stand on its own feet. The learned J.M.F.C held that on the scale of reasonableness and probability, the case of the complainant does not reign supreme and the accusation fails. The accused, therefore, came to be acquitted. The complainant is aggrieved by the impugned judgment and order. 5. After admission of the appeal, the respondents were duly Served with a notice of final hearing. On 7/12/2013, when the matter was taken up, none was present on behalf of the respondents and the matter was adjourned to 13/12/2012. On 13/12/2012, Advocate Mr. T. George John holding for Mr. P. K. Gude, Advocate for respondent no. 1 was present and at the request of the learned counsel for both the parties, the matter was adjourned. When the matter again came up on 15/12/2013, only the learned counsel for the complainant was present, whereas, none was present for the respondents. Hence, only the learned counsel for the appellant/complainant came to be heard. 6. Mr. 1 was present and at the request of the learned counsel for both the parties, the matter was adjourned. When the matter again came up on 15/12/2013, only the learned counsel for the complainant was present, whereas, none was present for the respondents. Hence, only the learned counsel for the appellant/complainant came to be heard. 6. Mr. Joshi, learned counsel appearing for the complainant, pointed out from the evidence on record that the execution of the written agreement concerning the said shop no. S-5 has been admitted in the evidence of PW.1, several times. He, therefore, submitted that non-production of the said agreement was not fatal to the case of the complainant. He submitted that the execution of cheque by the accused for the sum of Rs. 50,000/-in favour of the complainant has not been denied and that in view of the presumptions under Sections 118(a) and 139 of N.I. Act, it was for the accused to prove that there was no legally enforceable debt or liability. The learned counsel for the complainant submitted that though the civil suit no. 33/2004 filed by the complainant against the accused for specific performance of the said agreement and recovery of money was dismissed, however, an appeal has been filed against the judgment and decree dated 7/11/2008 and that the same is pending before the High Court. The learned counsel submitted that the complainant had entered into the said agreement with the accused after clearing all the dues of the builder and after redemption of the mortgage and therefore, the suit was wrongly dismissed and even otherwise, since the appeal is pending, the issue is not finalized. The learned counsel appearing on behalf of the complainant next submitted that the statutory notice was sent to the accused and it was received by him but no reply was sent. According to the learned counsel, the impugned judgment and order of acquittal is perverse and hence is liable to be set aside. He, therefore, submitted that the appeal be allowed and the impugned judgment and order be set aside and the accused be convicted and sentenced for the offence punishable under Section 138 of the N.I. Act. 7. I have carefully gone through the original record and proceedings of the said criminal case in the light of the arguments advanced by the learned counsel for the complainant. 8. 7. I have carefully gone through the original record and proceedings of the said criminal case in the light of the arguments advanced by the learned counsel for the complainant. 8. The only point for determination is whether the accused could rebut the presumption under Section 139 of the N.I. Act. 9. Relying upon the case of “Krishna Janardhan Bhat Vs. Dattaraya G. Hegde” [2008 AIAR (Criminal) 151], the learned J.M.F.C held that the existence of legally recoverable debt is not a matter of presumption under Section 139 of the N.I. Act and that the said section merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. However, the above finding of the learned J.M.F.C. can no more hold ground in view of the judgment of the Three-Judges bench of the Apex Court in the case of “Rangappa Vs. Mohan” ( AIR 2010 SC 1898 )., in which it has been held that the presumption mandated by Section 139 of the N.I. Act includes the existence of legally enforceable debit or liability as well. 10. In the case of “Bharat Barrel & Drum Manufacturing Company V/s. Amin Chand Pyarelal”, [ (1999) 3 SCC 35 , the Apex Court has held as under:- “Upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the defendant is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant 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 would, under the circumstances of the case, act upon the plea that it did not exist.” 11. There is no dispute that the agreement of assignment dated 29/1/2003 was executed by the complainant and his wife with the accused in respect of the said shop no. S-5. According to the complainant, the cheque was issued as per the said agreement Except the fact that as per the said agreement, it was agreed by the complainant and his wife to sell and/or assign all their rights in the said shop in favour of the accused for a total consideration of Rs. 4,00,000/-and that the cheque was issued as per the said agreement, there is nothing on record to know the other terms and conditions of the said agreement. In the cross-examination of PW.1, it has been brought on record that as on the date of the execution of said agreement, the complainant and his wife did not have any right to sell the said shop. In the cross-examination of PW.1, it has been brought on record that as on the date of the execution of said agreement, the complainant and his wife did not have any right to sell the said shop. Admittedly, the complainant and his wife had filed Special Civil Suit No. 33/2006 against the accused, his wife and the confirming party namely Shri Amarnath Vishwanath Gaonkar. The said suit was based on the same agreement dated 29.1.2003. The judgment, order and decree dated 7/11/2008, of the learned Adhoc District Judge in the said Special Civil Suit, is on record as Exhibit 51-C. From the said Judgment, it can be seen that the complainant and his wife had pleaded that by the said agreement, they agreed to sell to the defendant no.1 (accused) their shop for a total consideration of Rs. 4,00,000/-and that the accused had also to pay a sum of Rs. 3,000/-per month commencing from 1.2.2003 in consideration of the plaintiffs' handing over possession of the suit shop to him. It was further the case of the complainant and his wife that the accused on 29/3/2003 agreed to purchase furniture, fixtures and goods belonging to the complainant which were lying in the suit shop for a total consideration of Rs.1,10,000/-. It was further alleged in the said suit that the accused had issued the cheque of Rs. 50,000/-as advance money and had agreed to pay the balance of Rs. 3,50,000/-within a period of two months from the date of signing the agreement and in respect of the fixture, furniture and goods had issued two cheques of Rs. 40,000/-each and one of Rs. 30,000/-all dated 31/12/2003. The learned Adhoc District Judge-I held that the plaintiffs i.e. the complainant and his wife had no title to the said shop since the said shop was mortgaged with Goa Urban Cooperative Bank Ltd., due to which the plaintiff had no right to sell the same to the accused. The learned Judge, therefore, held that the complainant's agreement is not enforceable due to Section 17 of the Specific Relief Act. The said suit has been, therefore dismissed. It is true that in the cross-examination, PW.1 has stated that an appeal has been preferred against the said judgment in the High Court. The learned Judge, therefore, held that the complainant's agreement is not enforceable due to Section 17 of the Specific Relief Act. The said suit has been, therefore dismissed. It is true that in the cross-examination, PW.1 has stated that an appeal has been preferred against the said judgment in the High Court. However, it is not known as to why PW.1 voluntarily stated that he does not wish to produce the appeal memo or to state the number of the said appeal. It has been suggested to PW.1 that he did not file any appeal. Be that as it may, the fact remains that the said suit has been dismissed. 12. First of all, PW.1 has not produced on record the agreement dated 29/1/2003 and has also not given any explanation as to why the same could not be produced. Secondly, though PW. 1 says that he has filed the appeal against the judgment in Special Civil Suit No.33/2006, he however adds that he does not wish to produce the appeal memo. There is no explanation as to why PW. 1 did not wish to produce the appeal memo on record. It is pertinent to note the said three cheques which were issued towards the alleged payment of the cost of furniture, fixtures and goods, lying in the same shop, were also dishonoured and PW.1 had filed three criminal cases under the Negotiable Instruments Act, against the accused. All the three appeals were dismissed. Admittedly, PW.1 had not filed appeal against the said judgments. A suggestion has been put to PW.1 that as on the date of execution of the agreement i.e on 29/1/2003, he and his wife did not have any right to sell the said shop. Admittedly, no sale deed in respect of the said shop was executed between the complainant and the builder. A suggestion has also been put to PW.1 that he has deliberately not produced and exhibited the agreement since the same is not enforceable by law. PW.1 has admitted that as per Clause 32 of the agreement, it was his responsibility to recover the amount from the builder. However, he added that the same was in respect of other dues pertaining to formation of society, etc. PW.1 has admitted that as per Clause 32 of the agreement, it was his responsibility to recover the amount from the builder. However, he added that the same was in respect of other dues pertaining to formation of society, etc. In the circumstances above, one thing can be certainly said that the production of the said agreement, in order to disclose all the terms and conditions of the same, was relevant. 13. Indisputably, the complainant had mortgaged the said shop to Goa Urban Cooperative Bank Ltd.. In the cross-examination, PW.1 has stated that he had purchased the said shop by making part payment and by taking loan from the bank namely the Goa Urban Co-operative Bank Ltd., Margao. He has also admitted that the said shop was mortgaged to Goa Urban Co-operative Bank Ltd. from which the said loan was taken. Admittedly, as on the date of the execution of the said agreement of assignment, the said mortgage was in force. This is clear because in the cross-examination PW.1, a suggestion was put that at the time when the agreement was executed, the loan of the shop was not cleared. To this, PW.1 answered that the said agreement was only an agreement of sale and that a very small amount of loan was left and that he had spoken to the bank about the same and he was told that the bank has no objection if he entered into said sale. According to PW.1, he had spoken to the Branch Manager Mr. Dessai. However, a suggestion has been put to PW.1 that all his above statements are false and a suggestion has also been put to PW.1 that his statement that only an amount of Rs.10,000/-towards repayment of loan was left is a false statement. It is pertinent to note that PW.1 has not denied the suggestion that as per law, a mortgaged shop cannot be sold or agreed to be sold to any person. To such a suggestion, PW.1 has answered that he has spoken to the Manager of the bank and that the Manager had told that he had no objection. Admittedly, the accused has not produced on record any “no objection” given by the bank for execution of the agreement pertaining to the said shop with the accused. The complainant has not produced the agreement for loan as also the document of mortgage. Admittedly, the accused has not produced on record any “no objection” given by the bank for execution of the agreement pertaining to the said shop with the accused. The complainant has not produced the agreement for loan as also the document of mortgage. The complainant has also not examined the said Branch Manager Mr. Dessai. 14. In the circumstances above, the finding of the Learned J.M.F.C. that on the scales of reasonableness and probability, the case of the complainant does not reign supreme and that the accusation fails is a probable view. The complaint is tainted with cryptic averments and suppression of facts. It is a well settled principle that the accused need not disprove the existence of consideration by way of direct evidence. The standard of proof for the accused to rebut the presumption under Sections 139 and 118(a) of the N.I. Act is preponderance of probabilities. In my view, the accused has succeeded in rebutting the said presumptions. 15. In the case of “KheduMohton and Others Vs. State of Bihar” ( AIR 1971 SC 66 ), the Hon'ble Apex Court has held that if on the evidence on record, two views are possible and one view is adopted by the trial court, there is no scope for interference by the High Court against that order even if the High Court is inclined to accept the other view. Since the view adopted by the learned J.M.F.C. is a probable view, there is no scope for interference with the impugned judgment and order. 16. In the result, there is no merit in the appeal and the same, therefore stands dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.