Judgment :- 1. The complainant in C.C.No.6703 of 2006 on the file of the XVIII Metropolitan Magistrate, Sadapet, Chennai, is the appellant. The appellant filed the above private complaint under sections 138 and 141 of the Negotiable Instruments Act (for short, “N.I.Act”) stating that the respondent is a partnership firm and it was carrying on business in the name and style of M/s.Quick Fotos at Chennai and that one of the partners of the respondent, namely, Mennal Narayanan, borrowed a sum of Rs.7,82,820/- from the appellant and acknowledged her liability and promised to settle the amount and thereafter, she issued a cheque bearing No.216839 dated 20.8.2001 for a sum of Rs.7,82,820/- in favour of the appellant and when the cheque was presented for collection on 20.8.2001, the same was returned unpaid for the reason “account was closed”, on 20.8.2001. Therefore, the appellant sent a legal notice dated 27.8.2001 and in reply, the respondent sent a legal notice dated 21.8.2001 denying the issuance of cheque in question and thereafter, failed to make the payment. Therefore, the complaint was filed against the respondent under the provisions of the N.I.Act. 2. The appellant/complainant examined two witnesses and marked 12 Exhibits and the respondent examined two witnesses and marked 12 Exhibits. The trial Court on the basis of the oral and documentary evidence held that the appellant failed to prove that the cheque was issued towards legally enforceable debt and acquitted the respondent and aggrieved by the same, this Appeal is filed. 3. The learned counsel for the appellant submitted that the signature found in the cheque was not disputed by the respondent and the respondent claimed that the cheque was lost in the year 1996 itself and no complaint in that regard was filed by the respondent either to the bank and the document Ex.D.10 relied on by the respondent to prove that she sent the intimation to the bank on 10.7.1996 regarding the loss of cheque should not have been accepted by the Court below as there was no seal on Ex.D.10 by the bank for having received the letter on 10.7.1996 and the bank manager has also admitted in evidence that there was no endorsement regarding receipt of such letter by the bank. Ex.P.11, the extract from the Cheque Return Register, also did not support the case of the respondent regarding the loss of cheque and the intimation given to the bank and admittedly, the cheque was returned only on the ground of “account closed” and not on the ground that the complaint was received about the loss of cheque. Even in the year 1996, there was no endorsement in the Cheque Return Register to that effect. He also submitted that once the cheque has been issued and the signature is admitted, the payee is entitled to draw presumption under law that the cheque was issued towards legally enforceable debt and there is no need to prove passing of consideration for the issuance of cheque and only after the drawer rebutted the presumption by convincing and probable defence, the payee has to prove the passing of consideration and in this case, the respondent failed to rebut the presumption of raising probable defence and the defence raised by the respondent that the cheque was lost even in the year 1996 and that was also intimated to the bank as evidenced by Ex.D.10 cannot be accepted as Ex.D.10 does not contain the seal of the bank for having received the letter on 10.7.1996. Therefore, the trial Court erred in holding that there was no evidence that the cheque was issued for a legally enforceable liability. He, therefore, submitted that the judgment of the trial Court is liable to be set aside and the Criminal Appeal has to be allowed. 4. Therefore, the trial Court erred in holding that there was no evidence that the cheque was issued for a legally enforceable liability. He, therefore, submitted that the judgment of the trial Court is liable to be set aside and the Criminal Appeal has to be allowed. 4. On the other hand, Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the respondent submitted that the trial Court after considering various Exhibits rightly held that there was no evidence for payment of consideration and no particulars were given in the complaint regarding the date on which the amount was advanced and the date on which the cheque was issued and the appellant also admitted in cross-examination that he was a partner in the chit fund business in which the father of Meenal Narayanan was also one of the partners and even before the date of cheque which is impugned in this Appeal, a dispute arose in respect of the property purchased between the partners namely, husband of the appellant, namely, Chidambaram and father of the respondent, namely, Ramanathan and civil suits were filed by the father of the respondent and injunction order was also obtained as evidenced by Ex.D.6. Admittedly, the respondent was a subscriber to one of the chit fund firm, namely, Krithika Chits, Mylapore, Chennai, in which the husband of the appellant and the father of the respondent were partners and towards chit subscription payable by the respondent, cheques were given through her father, who was one of the partners who kept the cheque in the office and that would probablise that the cheque was kept in the office by the father of the respondent and after the dispute arose between the parties, the husband of the appellant committed theft of that cheque and misused the same by filling the cheque and considering all these aspects, the trial Court rightly held that the appellant failed to prove that there was legally enforceable liability. He also submitted that the appellant also suppressed the material facts while launching the complaint. He also submitted that the appellant also suppressed the material facts while launching the complaint. The learned Senior Counsel further submitted that even before the issuance of statutory notice Ex.P.4 dated 27.8.2001, the accused/respondent herein sent a letter dated 21.8.2001 marked as Ex.D.9 and in that letter, it was specifically stated that there was no transaction whatsoever between the appellant and the respondent, and a blank cheque was issued by the accused/respondent to her father in the year 1996, which was undated, and the husband of the appellant had stolen the cheque and utilised the same by filling the cheque date and amount after a dispute arose between the husband of the appellant and father of the respondent, and this notice was received by the appellant and thereafter, he issued statutory notice Ex.P.4 dated 27.8.2001. Subsequently, the appellant sent a reply letter dated 5.9.2001 to the respondent with respect to the letter sent by the respondent dated 21.8.2001. In Ex.P.4 statutory notice, there was no reference to the notice sent by the respondent on 21.8.2001 and in the complaint also, there is no reference to the notice sent by the accused/respondent dated 21.8.2001 marked as Ex.P.7 equivalent to Ex.D.9. Therefore, in the absence of any explanation given by the appellant/complainant for not mentioning the earlier notice sent by the respondent/accused and the failure to give explanation for that notice in the complaint, the trial Court rightly held that there was no enforceable liability. He also submitted that the respondent through Ex.D.3 receipts proved that even on 29.3.2001, the respondent firm paid a sum of Rs.29,130/-, Rs.39,912/-, Rs.16,790/- and Rs.36,912/- towards chit transaction No.SL – 5/10 to M/s.Krithika Chits & Investments Pvt.Ltd.,. If really, the respondent owed a sum of Rs.7,82,820/- as claimed by the appellant, the appellant would have claimed that amount from the respondent or would have adjusted various payments made to the respondent towards chit transaction towards the amount payable by the respondent to the appellant and these facts were appreciated by the learned trial Judge while acquitting the respondent. He further submitted that PW.1 husband of the appellant admitted in evidence, with regard to the dispute between him and father of the respondent, in the suit filed by the father of the respondent, injunction order obtained in O.A.No.452 of 2001 restraining the husband of the appellant dealing with the properties belonging to the partnership firm and that injunction order was issued on 3.5.2001. Therefore, after the dissolution of the partnership firm, the relationship between the husband of the appellant and father of the respondent strained and the contention of the appellant that the cheque was issued on 20.8.2001 towards the liability of Rs.7,82,820/- cannot be accepted. He also submitted that rebuttal presumption need not be beyond reasonable doubt and it is enough if the accused is able to make out a probable defence which would create a doubt in the mind that of the Court that the cheque would have been issued towards the legally enforceable debt and having regard to various Exhibits marked in this case on the side of the defence, the respondent proved that the cheque would not have been issued as alleged by the complainant and considering all these aspects, the learned trial Court rightly dismissed the complaint and acquitted the accused. He also relied upon the following judgments:- 5. The point for consideration in the Appeal is whether there was legally enforceable debt payable by the respondent? and whether the respondent rebutted the prosecution. 1 John K.Abraham Versus Simon C.Abraham and another [(2014) 2 Supreme Court Cases 236] 2 Vijay versus Laxman and another [(2013) 3 Supreme Court Cases 86]ijay Versus Laxman and another [(2013) 3 Supreme Court Cases 86] 3 Krishna Janardhan Bhat Versus Dattatraya G. Hegde [() 4 Supreme Court Cases 54] 4 M.S.Narayana Menon @ Mani Versus State of Kerala and another [2006 (3) CTC 730] 5 Kundan lal Rallaram Versus Custodian, Evacuee Property, Bombay [AIR 1961 SUPREME COURT 1316(1)] 6. It is the case of the appellant that the respondent approached the appellant for some advance and a sum of Rs.7,82,820/- was paid and later towards the discharge of that amount, cheque bearing No.216839 dated 20.8.2001 for a sum of Rs.7,82,820/- was issued by the respondent partnership firm signed by Meenal Narayanan and that was sent for collection and the same was returned with an endorsement “account closed”. In the complaint, no particulars were given about the date on which the said sum of Rs.7,82,820/- was paid to the respondent and whether any document was executed for having received such amount by the respondent in favour of the appellant. In the statutory notice Ex.P.4 also, nothing has been stated about the date on which the amount was advanced by the appellant to the respondent. The husband of the appellant was examined as PW.1 and in his evidence, he deposed that the partner of the respondent, namely, Meenal Narayanan, borrowed a sum of Rs.7,82,820 for her business run by the partnership firm and at the time of receiving money, she issued cheque bearing No.216839 drawn on Indian Bank, dated 20.8.2001, for a sum of Rs.7,82,820/-. Therefore, from the evidence of PW.1, the cheque was issued on the date of borrowal and it has to be presumed that the post-dated cheque was issued by the respondent while borrowing the amount. He also admitted the receipt of Ex.P.7 notice dated 21.8.2001 issued by the respondent and also admitted that the partner of the respondent firm, namely, Meenal Narayanan was a subscriber to the chit run by M/s.Krithika Chits in which the husband of the appellant was a partner and the respondent's father was also a partner and in the suit filed against him, the respondent's father obtained injunction and also admitted that he received the notice Ex.P.7 sent by the respondent only on 3.9.2001 and prior to that, he filed the complaint, and therefore, he was not able to give explanation for the notice sent by the accused. 7. According to me, the explanation given by PW.1 for not giving any explanation to Ex.P.7 notice issued by respondent/accused cannot be accepted. It is seen from the complaint filed before the Court that the complaint was filed on 9.10.2001 and the complaint bore the seal of the Court dated 9.10.2001. Therefore, on the date of filing of the complaint, the appellant received notice Ex.P.7. Accepting the case of the appellant that he received notice only on 3.9.2001, nevertheless, no explanation has been stated in the complaint regarding Ex.P.7 notice sent by the accused wherein the accused clearly stated that the cheque was stolen by the appellant. Therefore, on the date of filing of the complaint, the appellant received notice Ex.P.7. Accepting the case of the appellant that he received notice only on 3.9.2001, nevertheless, no explanation has been stated in the complaint regarding Ex.P.7 notice sent by the accused wherein the accused clearly stated that the cheque was stolen by the appellant. It is also admitted that the father of the respondent, namely, Ramanathan and the husband of the appellant who was examined as PW.1 were partners in M/s.Krithika Chits and difference arose between the parties and arbitration proceedings were taken and injunction order has been obtained at the instance of the said Ramanathan against the appellant's husband in the month of March, 2001 and thereafter, the cheque was alleged to have been given. PW.1 also admitted in evidence that the said Ramanathan who was the partner along with PW.1 is none other than the brother of PW.1 and Meenal Narayanan, a partner in the respondent firm, is his brother's daughter. He also admitted that Ex.P.2 cheque was kept by the father of the respondent in his office and the cheque was blank one and, PW.1 and Ramanathan were handling the cheques belonging to the company and all the four directors were handling the cheque and even in the year 2000, difference of opinion arose between the partners and in the year 2001, he left the partnership firm and injunction order was obtained against him from alienating the property. Therefore, when the relationship between PW.1 and father of Meenal Narayanan, became strained and the cheque issued by Meenal Narayanan was kept in the company's office by the father of the drawer, namely, Meenal Narayanan, the defence version that the cheque was lost and that was misused by the appellant is probable and the cheque could not have been issued by the appellant when the dispute arose between the appellant and the respondent's father even in the year 2001 March and injunction order also obtained against the appellant. Therefore, by marking Ex.P.7 reply notice and explanation to Ex.P.7 notice by the appellant in her complaint, the strained relationship between father of the respondent and the husband of the appellant had been proved and therefore, the absence of particulars in the complaint regarding the date of borrowal would assume importance and that would lead to the conclusion that the respondent rebutted the presumption and thereafter, the appellant failed to prove that the cheque was issued for a legally enforceable debt and the trial Court was right in holding that the cheque was not issued towards a legally enforceable liability. 8. It is contended by the learned counsel for the appellant that Ex.D.10 letter alleged to have been given to the regarding the loss of cheque dated 10.7.2006 by the respondent cannot be accepted as it does not bear the seal of the bank and the document was also not produced from the bank record. He therefore, submitted that the trial Court erred in relying upon Ex.D.10 to hold tht the cheque was lost in the year 1996 itself. As a matter of fact, the learned Senior Counsel for the respondent also relied upon Ex.D.10 on the evidence of PW.2 in support of his contention that the respondent proved that the cheque was lost in the year 1996 and the account was closed in the year 1998 and therefore, the cheque must have been stolen by the husband of the appellant while he was handling the cheques received in favour of the partnership firm and also having regard to the admission of PW.1 that the blank cheque which is impugned was kept by the father of the respondent in the company. 9. According to me, the appellant is justified in his contention that the lower Court ought not to have accepted Ex.D.10 for the purpose of rebutting the presumption. As rightly submitted by the learned counsel for the appellant that Ex.D.10 was produced at the instance of the respondent and no Application was filed by the respondent calling upon the bank to produce Ex.D.10 from the custody of the bank. It is seen from the records that PW.2 was examined in chief on 18.9.2004 and was cross-examined on 13.10.2004 and during cross-examination on 13.10.2004, PW.2 spoke about the letter Ex.D.10. It is seen from the records that PW.2 was examined in chief on 18.9.2004 and was cross-examined on 13.10.2004 and during cross-examination on 13.10.2004, PW.2 spoke about the letter Ex.D.10. I have gone through the lower Court records and I am unable to find out any Application filed by the respondent calling upon the bank to produce the letter dated 10.7.1996 sent by the respondent reporting the loss of cheque. Further, Ex.D.10 does not bear any seal of the bank and in Ex.P.7 notice sent by the respondent/accused and also in Ex.P.6 sent by the accused to the statutory notice given by the complainant, there was no whisper about the complaint given to the bank regarding the loss of cheque on 10.7.1996 and in Ex.P.7, it was only stated that the cheque bearing No.216839 was given to her father Ramanathan and the cheque was undated and blank and PW.1 had stolen the cheque. In that notice, she has not stated about the complaint given to the bank. Similarly, in Ex.P.6 notice also, she has not mentioned about the complaint regarding loss of the cheque to the bank. Though PW.2 Bank Manager admitted the receipt of Ex.D.10 letter issued by the accused, having regard to the fact that it does not contain any seal of the bank and no application was filed to produce the said letter from the bank and the absence of such complaint to the bank, Ex.P.6 and Ex.P.7 would lead to the conclusion that Ex.D.10 must have been created for the purpose of this case. This is also evident from the fact that in Ex.P.11, there was no entry regarding the complaint given about the loss of cheque and the cheque was returned only on the ground “account closed”. Therefore, the contention of the learned Senior Counsel regarding the complaint given by the respondent about the loss of cheque cannot be accepted. Therefore, finding of the trial Court in Paragraph 14 that “the defence plea raised on the accused is acceptable in nature”, having regard to Ex.D.10 has to be set aside. However, having regard to the reasons stated earlier, I hold that the appellant failed to prove the passing of consideration and the respondent rebutted the presumption through various Exhibits and the appellant, thereafter, failed to discharge the burden of passing consideration. Therefore, the trial Court rightly dismissed the complaint and acquitted the accused. 10. However, having regard to the reasons stated earlier, I hold that the appellant failed to prove the passing of consideration and the respondent rebutted the presumption through various Exhibits and the appellant, thereafter, failed to discharge the burden of passing consideration. Therefore, the trial Court rightly dismissed the complaint and acquitted the accused. 10. In this connection, it is pertinent to refer to the judgment of the Hon'ble Supreme Court reported in (2014) 2 SCC 236 supra wherein it has been held that in order to draw presumption under section 118 r/w 139, burden lies on the complainant to show that he had the requisite funds for advancing the sum of money/loan in question to accused, and that the issuance of cheque by accused in support of repayment of money advanced was true and no explanation was given by the appellant regarding Ex.P.7 notice sent by the accused prior to the filing of the complaint about the loss of cheque. 11. In the judgment reported in (2013) 3 SCC 86 supra, law relating to rebutting presumption under section 139 of the N.I.Act was highlighted and held that the standard of proof required for rebutting the presumption is not as high as that required of the prosecution and is rebuttable on the preponderance of probabilities. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. 12. In the judgment reported in 2001 Supreme Court Cases (Cri) 960 in the matter of Hiten P.Dalal Versus Bratindranath Banerjee, it has been held that the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. 13. In the judgment reported in (2007) 12 Supreme Court Cases 714 in the matter of John K.John v. Tom Varghese and another, the Hon'ble Supreme Court, it isheld as follows:- 11 (10). ...The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. ...The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken. 14. In the judgment reported in 2006 (3) CTC 730supra, the same principle of law has been reiterated. 15. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken. 14. In the judgment reported in 2006 (3) CTC 730supra, the same principle of law has been reiterated. 15. Therefore, having regard to the Supreme Court's judgment referred to above and having regard to the fact that no particulars were given regarding the date on which the amount was advanced, the date on which the cheque was given, the non-explanation of the details regarding notice sent by the accused in the complaint though the same was received by the complainant much earlier to the filing of the complaint and the fact that the relationship between the family of the complainant and the family of the respondent got strained even prior to the alleged issuance of cheque by the accused that the accused owed money to the chit conducted by the complainant and was paying the amount till March, 2011 and no document was obtained by the complainant while the amount was advanced would lead to the conclusion that the complainant failed to prove passing of consideration and the accused also rebutted the presumption by those documents referred to above and even though the accused was not able to prove that the intimation about such cheque was given in the year 1996 and the evidence in that respect cannot be believed. Having regard to the finding given above, I do not want to interfere with the finding of the trial Court. 16. In the result, the Appeal is dismissed and the judgment of the trial Court is confirmed.