JUDGMENT 1. Revision is admitted. By consent, notice after admission made returnable forthwith. Heard both the sides. The revision is filed against the judgment and order of Criminal Appeal No 71/2011 which was pending in the Court of Additional Sessions Judge, Latur. The learned Additional Sessions Judge has confirmed the judgment and order of S.T.C.C. No. 796 of 2009 which was pending in the Court of Judicial Magistrate, First Class. The J.M.F.C. has convicted and sentenced the petitioner/accused for the offence punishable under section 138 of Negotiable Instruments Act ('N.I. Act' for short). Though the simple imprisonment of six months is given, this sentence is to run concurrently with similar sentence given in S.T.C.C. No. 795 of 2009. The private complaint was filed by present respondent for offence punishable under section 138 of N.I. Act. 2. In short, the facts leading to the institution of revision can be stated as follows:- The respondent/complainant is a partnership concern and it is doing the business of printing stationary items. The petitioner/accused is in the business of stationary items. It is the case of complainant that towards the charges of printing and supply of stationary items, the accused gave cheque worth Rs. three lakh which bounced. It is the case of the complainant that he used to send the goods by using courier services and when the goods were in large quantity, the accused used to collect the goods at the place of printing. 3. It is the case of complainant that the cheque dated 26.2.2009 bearing No. 132547 given by the accused was presented by him in his bank from Latur. It is contended that in the online transaction, it was informed that funds were not sufficient in the account of the accused and the cheque bounced on 27.2.2009. It is the case of complainant that when he contacted the accused and informed about the dishonour of the cheque, the accused requested to present the cheque again. It is contended that the cheque was again presented in his account by the complainant on 18.3.2009, but it again bounced and such memo was given by the bank on 20.3.2009. The complainant then issued statutory notice and followed the procedure given in N.I. Act and filed private complaint for aforesaid offence. The statutory notice was replied by accused. The accused pleaded not guilty. 4. The complainant then issued statutory notice and followed the procedure given in N.I. Act and filed private complaint for aforesaid offence. The statutory notice was replied by accused. The accused pleaded not guilty. 4. Both the sides gave evidence before the J.M.F.C. The learned Trial Court has held that there were transactions of purchase of stationary items between the complainant and the accused and towards payment of part of consideration amount, the cheque in question was given. In addition to aforesaid substantive sentence, the J.M.F.C. has directed the accused to pay compensation of Rs. three lakh to the complainant. In default of making the payment of compensation, the accused is to suffer simple imprisonment for two months. 5. Following submissions were made by the learned senior counsel who argued for the petitioner. (a) About jurisdiction :- It was submitted that the cause of action did not arise in Latur as cheque was drawn on account of accused from a bank situated at Dombivali (District Thane). It was submitted that the learned J.M.F.C., Latur has no territorial jurisdiction over the cause of action. (b) The point of legally enforcible debt/liability :- It was submitted that the evidence given by complainant is not sufficient to prove that there was existing legally enforcible debt or liability and so the conviction cannot sustain in law, and (c) The cheque given as security :- It was submitted that the cheque was given by way of security and not as the consideration for any transaction or as payment and so the conviction cannot sustain for offence under section 138 of N.I. Act. 6. This Court is discussing the aforesaid points. Much was argued by the learned Senior Counsel for the petitioner about the burden of proof. It was submitted that the burden of proof was on the complainant and the accused has created many probabilities in his favour. It is true that in a criminal case, it is for the prosecution to bring home guilt of the accused. It is also true that the prosecution must prove the offence beyond reasonable doubt. However, when the prosecution leads the evidence, which, if believed, will sustain conviction, the burden of proof may lie upon the accused. In this regard, the provisions of sections 101 and 102 of Evidence Act need to be read together. They are as follows:- "101. It is also true that the prosecution must prove the offence beyond reasonable doubt. However, when the prosecution leads the evidence, which, if believed, will sustain conviction, the burden of proof may lie upon the accused. In this regard, the provisions of sections 101 and 102 of Evidence Act need to be read together. They are as follows:- "101. Burden of proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." 102. On whom burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." In view of the principles laid down in these two sections, when the presumption as provided in sections 118 and 138 of N.I. Act becomes available, the onus can shift upon the accused. In view of the aforesaid principles and the presumptions, which are available under aforesaid two sections of N.I. Act, the foundational facts need to be established by prosecution. When the foundational facts are established, the presumption becomes available against the accused. When the presumption becomes available, the onus of proof would be on the accused to rebut the presumption. Such rebuttable presumption determines on whom the burden of proof rests. Which foundational facts need to be established in such a case, needs to be determined on the facts and circumstances of that case. 7. In the case reported as (2001) 6 SCC 16 [Hiten P. Dalal Vs. Bratindranath Banerjee], the three Judges Bench of Hon'ble Supreme Court has laid down that, "by reason of sections 118 and 138 of N.I. Act, the Court has no other option but to draw the presumption in any case where the factual basis of raising presumption is established." While appreciating the rival cases and the evidence, the Court is expected to keep in mind this position of law. 8. The learned Senior Counsel for respondent placed reliance on the case reported as (2011) 13 Supreme Court Cases 148 [Anil Sachar and Anr. Vs. Shree Nath Spinners Private Limited and Ors.]. 8. The learned Senior Counsel for respondent placed reliance on the case reported as (2011) 13 Supreme Court Cases 148 [Anil Sachar and Anr. Vs. Shree Nath Spinners Private Limited and Ors.]. In this case, the Apex Court has interpreted the term 'any debt or other liability' used in section 138 of N.I. Act. The facts of this reported case show that there were two sister concern companies. These two companies used to give order for supply of goods to the complainant. Even when company "A" had given the order, the company "B" had made payments on many occasions and same was the case when company "B" had given orders. The Apex Court held that in such a case, it is sufficient for the complainant to prove that there were such transactions with the two companies. One of the company had issued cheques in question in this reported case. The Apex Court held that the cheques were given for consideration. The facts show that it was not possible for the complainant to give specific evidence against the accused company about the sale of specific goods in view of the aforesaid circumstances. Thus, when there are many transactions made on account, it is not open to the accused to contend that the evidence with regard to specific sale transaction is not given. 9. The learned Senior Counsel for the petitioner placed reliance on the case reported as 2006 (6) SCC 39 [M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr.]. The Apex Court has laid down ratios on following three propositions in a case filed under section 138 of N.I. Act. (a) If cheque is issued for security or for any other purpose other than the purpose mentioned in section 138 of N.I. Act, the same would not come within the purview of section 138 of N.I. Act. (b) When the burden of proof of a particular fact is shifted to the accused, the accused can discharge it on preponderance of probabilities. (c) The accused can discharge the burden which has shifted on him on the basis of material brought on the record even by the complainant himself and it is not necessary for the accused to lead defence evidence. There cannot be dispute over propositions made by the Apex Court. Similar observations are made in the case reported as 2008 CRI.L.J. 1172 SUPREME COURT [Krishna Janardhan Bhat Vs. There cannot be dispute over propositions made by the Apex Court. Similar observations are made in the case reported as 2008 CRI.L.J. 1172 SUPREME COURT [Krishna Janardhan Bhat Vs. Dattatraya G. Hegde]. In the case of Krishna Janardhan Bhat, it is further laid down by the Apex Court that under section 139 of N.I. Act, there is presumption that the cheque was issued for discharge of any debt or other liability and this presumption is not for the existence of legally enforcible debt or liability. There cannot be dispute over this proposition also. On the basis of rival cases and the evidence given in this case, it can be said that accused has taken the defence that he had already made the payments in respect of the transactions done and so, this proposition is of no use to the accused. When there is such defence, the burden is on the accused to prove that the amount was paid by him. In the case of Krishna Janardhan Bhatt cited supra, the Apex Court has also laid down that:- "The presumption of innocence as human right and the doctrine of reverse burden introduced by S. 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same. The Courts must be on guard to see that merely on the application of presumption as contemplated under S. 139, the same may not lead to injustice or mistaken conviction." There cannot be dispute over this proposition also. It needs to be said that the Criminal Court dealing with case filed under section 138 of N.I. Act needs to be keep in mind the aforesaid position of law. 10. Point No. 1 - Jurisdiction:- The complainant has come with the case that he had deposited the cheque involved for encashment in his account from a branch of State Bank of Hydrabad, Latur. It is his case that as the online transactions are made, the intimation about bouncing of cheque, which was passed by a branch from Thane was handed over to him at Latur. Similar contention is made in the statutory notice. Exh. 26, the intimation shows that it was received online. The complainant has given evidence as per his case. The statutory notice, a copy of which is at Exh. Similar contention is made in the statutory notice. Exh. 26, the intimation shows that it was received online. The complainant has given evidence as per his case. The statutory notice, a copy of which is at Exh. 27, was given from Latur by the complainant and the notice is replied by the accused. In the cross examination of the complainant, it is brought on the record that the cheque in question was handed over to complainant in Latur. There was no written agreement with regard to the mode of delivery or mode of payment. It can be said that the accused has admitted that the payments were to be made on account and they were not to be made on bill to bill basis. Thus, the account was opened with the complainant in respect of the transactions. Further, the printing of stationary items was done at Latur and specific evidence is given by the complainant that when the quantity was less, he used to send the goods by using courier service and when the quantity was large, the accused himself used to collect the goods from the printing press. These circumstances are sufficient to infer that the payments were to be made at Latur. When there are such circumstances, it needs to be presumed that the payment was to be made at Latur. The principle that 'debtor should follow the creditor' needs to be used in such a case. So the Court from Latur had the jurisdiction. 11. In the case reported as 2013 AIR SCW 4322 [Nishant Aggarwal Vs. Kailash Kumar Sharma], the following question was considered by the Hon'ble Apex Court. "Whether the Court, where a cheque is deposited for collection, would have territorial jurisdiction to try the accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short "the N.I. Act") or would it be only the Court exercising territorial jurisdiction over the drawee bank or the bank on which the cheque is drawn ?" The Apex Court has laid down that the Court, where a cheque is deposited for collection would have territorial jurisdiction to try such accused. Landmark case reported as AIR 1999 SUPREME COURT 3762 (1) [K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Anr.] is referred and the ratio is reiterated by the Apex Court. Landmark case reported as AIR 1999 SUPREME COURT 3762 (1) [K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Anr.] is referred and the ratio is reiterated by the Apex Court. In view of this position of law and the facts and circumstances of the case, this Court holds that both the Courts below have not committed error in holding that the Court from Latur has the jurisdiction. 12. Point No. 2 - Existence of legally enforcible debt - liability :- In the statutory notice and in the complaint, the complainant has come with the case that the cheque in question was given towards the charges of printing done for the accused. The evidence is given as per this case. In reply, a copy of which is produced at Exh. 28, the accused has admitted that there were such transactions between the complainant and the accused. Thus foundational facts were established. 13. In reply, the accused has contended that the rates of material were excessive, the complainant had not supplied the details of bills etc. and so, there was no liability. In paragraph No. 4 of the reply, specific admission is given by the accused that the said cheque was issued on account. However, the accused has contended that before presenting the cheque, the complainant was expected to supply all details of bills and account. In paragraph No. 3 of the reply, there is specific contention that payments were made on account and few cheques were deposited with the complainant on account when there was no specific order or consideration payable. The accused has then specifically contended that the cheque in question was issued without any consideration, specific order and it was just issued for security purpose. After taking this defence, suggestion was given to complainant during his cross examination by defence counsel that the payments were not made on bill to bill basis. This suggestion is admitted by the complainant. In defence, the accused has produced a copy of ledger account book at Exh. 61. This Court is discussing the value of this document, but, it can be said that by using the document at Exh. 61, the accused has admitted that the payments were never made on bill to bill basis. 14. In reply to the statutory notice, the accused has further contended that there were business transactions with the complainant from April 2008 to December 2008. 61, the accused has admitted that the payments were never made on bill to bill basis. 14. In reply to the statutory notice, the accused has further contended that there were business transactions with the complainant from April 2008 to December 2008. However, on oath, the accused has stated that he did the business with the complainant till March 2009. In Exh. 61, extract of ledger account, it is mentioned that the value of the total transaction was around Rs. twenty lakh. In the cross examination, the accused has admitted that the transactions worth more than Rs. thirty five lakh were done with the complainant. Thus, there was difference of amount of Rs. fifteen lakh between the account maintained by the accused and the transactions done. Here, the defence taken by the accused that he had made the payments in respect of all the transactions needs to be considered. It can be said that there was no entry made by the accused in respect of the transactions worth Rs. fifteen lakh or the payments made in respect of transactions worth Rs. fifteen lakh. 15. First time, in the evidence, the accused took the defence that he had paid the amount of Rs. 12.5 lakh to third party - Skand Enterprises on behalf of the complainant. First time, he contended in the evidence that he had paid Rs. 1.6 lakh to brother of complainant on 24.1.2009 and he had given one cheque also to brother of complainant. Copy of said cheque is at Exh. 65. It is for Rs. two lakh and it is dated 14.2.2009. Subsequent to issue of Exh. 65, the cheque in question was issued. There is no mention about such payments in the reply given to the statutory notice and the reply was given after the dates of these payments mentioned in the record of accused. 16. The accused has not proved the payments made to the brother of the complainant in cash and the said receipt is not proved. The accused has admitted in the cross examination that there is no record with him to prove that he actually made payments to Skand Enterprises for the complainant. The accused has not produced corresponding record from his own office to show that the payments were actually made and entries in daily book were made accordingly. The accused has admitted in the cross examination that there is no record with him to prove that he actually made payments to Skand Enterprises for the complainant. The accused has not produced corresponding record from his own office to show that the payments were actually made and entries in daily book were made accordingly. Even in the ledger account maintained in respect of complainant by the accused, there is no mention of such payments. 17. Even if, the aforesaid circumstances are ignored, the evidence of accused is not sufficient to prove that the payments were actually made as there is no evidence on making such payments. Even witness like Skand Enterprises is not examined by the accused. In this regard, section 34 of Evidence needs to be kept in mind. Section 34 runs as under:- "34. Entries in books of account when relevant.- Entries in the books of account, including those maintained in an electronic form, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. Illustration A sues B for Rs. 1000 and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence to prove the debt." 18. In the present case, accused has shown ignorance about entries made in his own ledger account. The accused has admitted that when the transactions were of Rs. thirty five lakh, the entries in respect of only transactions worth Rs. twenty lakh were made in the ledger account. These entries were not made in corresponding record like daily book and the account of complainant. Thus, there is no convincing evidence on proper maintenance of the account book in regular course of business. Even the corresponding record maintained by the accused does not support the aforesaid case of the accused. In view of these circumstances, it is not possible to hold that the entries were made in account book which was regularly kept in the course of business. Further, section 34 of Evidence Act shows that mere entry in such account cannot fasten liability on third party. For fastening of such liability, there must be some other independent corroborative material. In view of these circumstances, it is not possible to hold that the entries were made in account book which was regularly kept in the course of business. Further, section 34 of Evidence Act shows that mere entry in such account cannot fasten liability on third party. For fastening of such liability, there must be some other independent corroborative material. No such independent evidence is given by the accused. In view of the position of law and aforesaid circumstances, this Court holds that the extracts of ledger book account at Exhs. 60 and 61 in respect of the complainant and Skand Enterprises are of no help to the accused to prove that the payments were made to the complainant. It is already observed that in view of defence taken by the accused that the payments were already made, the burden of proof was on the accused. The aforesaid discussion shows that the accused has failed to discharge this burden. 19. Point No. 3 : Cheque given as security:- The accused has stated on oath that the business was done between 1.4.2008 and March 2009. In the cross examination, he has admitted that the cheque book pertaining to the disputed cheque was issued to him by his bank on 26.12.2008. Thus, the accused was not in a position to issue cheque to the complainant before starting of the business in April 2008. Accused has given evidence that the cheque at Exh. 65 was given by him to brother of complainant as the brother was in need of money. This cheque bears No. 132546 and it is dated 14.2.2009. The date on this cheque is written in the hand writing by the accused. The cheque in question bears No. 132547 and it bears date 26.2.2009. In view of these circumstances, it needs to be presumed that in ordinary course, the cheque in question was issued after the cheque at Exh. 65. These circumstances falsify the defence taken by the accused that the cheque in question was given prior to starting of the business, by way of security. 20. The aforesaid discussion shows that no probability at all is created in his favour by the accused in respect of the aforesaid defences. The learned J.M.F.C. has considered most of the aforesaid circumstances. This Court holds that there are no merits in the revision. No other point was argued. 21. 20. The aforesaid discussion shows that no probability at all is created in his favour by the accused in respect of the aforesaid defences. The learned J.M.F.C. has considered most of the aforesaid circumstances. This Court holds that there are no merits in the revision. No other point was argued. 21. In the result, the revision stands dismissed. The petitioner to surrender to his bail bonds. 22. On the request made by the learned counsel for the petitioner, time of four weeks is given to petitioner to surrender.