JUDGMENT : 1. This Criminal Appeal arises out of the judgment of acquittal dated 14.03.2006 made in C.C.No.364 of 2002 on the file of the learned Judicial Magistrate No.I, Salem. 2. The appellant is the Managing Partner of a partnership firm. The respondent's wife borrowed money from the appellant for a sum of Rs.1,75,000/- by entering into Hire Purchase Agreement/Ex.P.1 to purchase a lorry bearing Registration No.TCS 6694. The respondent executed the said hire purchase agreement as guarantor. Since, the respondent's wife failed to repay the dues, the appellant filed a complaint on 14.07.2001 against her and FIR was registered at Kitchipalayam Police Station. During the enquiry, the respondent undertook to repay the dues and he issued two cheques, namely, Ex.P.2 dated 10.10.2001 for a sum of Rs.60,000/- and Ex.P.3 dated 15.10.2001 for a sum of Rs.75,000/- respectively in favour of the appellant towards discharge of the said admitted debt. When the said cheques were presented for encashment, it was returned as “insufficient funds” as per Ex.P.4 to E.P.7. So the appellant/complainant on 28.10.2001 issued Ex.P.8 statutory notice to the respondent under Section 138 of Negotiable Instruments Act, which was acknowledged by Ex.P.9 and the respondent has given a reply/Ex.P.10. Even though the respondent has given a reply, but he has not repaid the dues. Therefore, the appellant/complainant was constrained to file a private complaint against the respondent/accused under Section 138 of Negotiable Instruments Act. 3. The trial Court has taken cognizance of an offence, after recording the sworn statement and after following the procedure. Since the accused pleaded not guilty, the trial Court examined P.W.1 and Exs.P1 to P13 on the side of the complainant and on the side of the respondent, D.W.1 to D.W.3 were examined and Exs.D1 to D9 were marked. The trial Court after considering the oral and documentary evidence, acquitted the accused for the offence under Section 138 of Negotiable Instruments Act. 4. Challenging the judgment of acquittal passed by the trial Court, learned counsel for the appellant/complainant submitted that the respondent's wife has obtained a loan under hire purchase agreement/Ex.P.1 for Rs.1,75,000/- on 28.08.1996 for a sum of Rs.1,75,000/- to purchase a lorry bearing No. TCS 6694. Since, she was irregular in payment, the amount due is Rs.1,83,800/-. 4. Challenging the judgment of acquittal passed by the trial Court, learned counsel for the appellant/complainant submitted that the respondent's wife has obtained a loan under hire purchase agreement/Ex.P.1 for Rs.1,75,000/- on 28.08.1996 for a sum of Rs.1,75,000/- to purchase a lorry bearing No. TCS 6694. Since, she was irregular in payment, the amount due is Rs.1,83,800/-. Since the vehicle was not in a moving condition, for removal of tyres and engine, he has given a complaint before the Kitchipalayam Police Station on 14.07.2001, which was taken as C.S.R.No.136 of 2001. When the enquiry was conducted on 15.07.2001, the matter was compromised and the respondent herein has agreed to pay a sum of Rs.1,35,000/- and he has issued two cheques/Ex.P.2 and Ex.P.3. dated 10.10.2001 and 15.10.2001 respectively. On 01.10.2001 the respondent issued a notice/Ex.D.5 and the appellant sent a reply/Ex.D.6 dated 16.10.2001. The two cheques/Ex.P.2 and Ex.P.3 were presented for encashment and that has been returned as “insufficient funds” as per Ex.P.4 to Ex.P.7. The appellant issued statutory notice/Ex.P.8 on 28.10.2001 and the respondent sent a reply/Ex.P.10 on 07.11.2001 and the respondent's wife has also sent a reply/Ex.P.13. The Trial Court has acquitted the respondent stating that the respondent herein has probablised his defence that the cheque has been obtained under force and coercion and there is no evidence to show that the cheque was issued for discharging legally subsisting liability. But the above factum is not correct. Once the issuance of cheque and the signature in the cheque has been admitted, the appellant is entitled to invoke presumption under Sections 118 and 139 of Negotiable Instruments Act. Even though it is a rebuttable presumption, the presumption has not been rebutted. Merely because the cheques/Ex.P.2 and Ex.P.3 were obtained in the Police Station which will not amount to that the cheques have been obtained by force and coercion and not for discharging legally subsisting liability. He further submitted that merely because the cheque has been issued at Police Station, it will not be the ground for rejecting the same. Hence, he prayed for setting aside the judgment of acquittal. To substantiate his arguments, he relied upon the decision reported in 2007 (4) SCC 752 (P.Suresh Kumar vs. R.Shankar). 5. Resisting the same, the learned counsel appearing for the respondent would submit that the cheques were obtained by force and coercion in the Police Station. Hence, he prayed for setting aside the judgment of acquittal. To substantiate his arguments, he relied upon the decision reported in 2007 (4) SCC 752 (P.Suresh Kumar vs. R.Shankar). 5. Resisting the same, the learned counsel appearing for the respondent would submit that the cheques were obtained by force and coercion in the Police Station. So, there is no evidence to show that it was issued for discharging legally subsisting liability. He further submitted that before the cheques were presented for encashment, he issued a notice under Ex.D.5 dated 01.10.2001 and the appellant sent a reply/Ex.D.6 dated 16.10.2001. Those facts has not been mentioned in the complaint. So, it is suppression of material facts. It is also one of the reason for rejecting the same. Hence, he prayed for dismissal of the appeal. To substantiate his arguments, he relied upon the following decisions: 1. 2013 (1) MWN (Cr.) DCC 85 (Mad) (Rajendran vs. N.Radhakrishnan) 2. 2009 (4) MLJ (Crl.) 959 (Chellammal vs. S.Krishnamoorthy) 3. 2007 (5) CTC 251 (Subburam vs. Raja Guru) 4. 2004 MLJ (Crl.) 210 (K.Samisundara Raj vs. The Inspector of Police, Guindy Police Station, Chennai and another) The learned counsel appearing for the respondent also filed the written submissions. 6. Considered the rival submissions made on both sides and perused the typed set of papers. 7. The case of the appellant is that the appellant is the Managing Director of the appellant partnership firm. He filed the Form Registration Certificate/Ex.P.11 and partnership deed/Ex.P.12. It is also admitted fact that there is a hire purchase agreement between the wife of the respondent and the appellant. It is also admitted by both sides that there are so many transactions between the appellant and the respondent. The respondent's wife has availed loan for hire purchase agreement for purchasing a lorry bearing Registration No. TCS 6694 for Rs.1,75,000/-. It is pertinent to note that under Sections 118 and 139 of Negotiable Instruments Act, once the issuance of cheque and the signature in the Cheque has been admitted, the appellant is entitled to invoke presumption under Sections 118 and 139 of Negotiable Instruments Act that the cheque has been issued for discharging legally subsisting liability. It is a rebuttable presumption. The respondent/accused has to rebut the presumption by preponderance of probabilities not beyond all reasonable doubt. 8. It is a rebuttable presumption. The respondent/accused has to rebut the presumption by preponderance of probabilities not beyond all reasonable doubt. 8. Before considering the facts of the case, this Court has to consider the decisions relied upon by both the parties. 9. The learned counsel appearing for the respondent relied upon the decision reported in 2013 (1) MWN (Cr.) DCC 85 (Mad) wherein it was held that non-disclosing the issuance of notice in the complaint, hence, he is guilty of suppression of material facts in the complaint. He relied upon paragraph Nos.10 and 11, which reads as follows: “10. It is pertinent to note that Ex.D2 notice issued by respondent precedes Ex.P4 notice issued by the complainant. Ex.P4 is dated 01.06.2004 by means of which he has informed the respondent as per the allegations in the complaint and called upon him to pay Rs.2,00,000/- towards the cheque dt.25.05.2004. For this notice, the respondent has sent a reply under Ex.P6 on 07.06.2004 through lawyer reiterating the allegations contained in Ex.D2 notice. It is also to be noted herein that in the cross examination, PW1 has admitted that for the total loan of Rs.4,00,000/-, the respondent has repaid Rs.40,000/- and for the balance of Rs.3,60,000/-, he issued two cheques. 11. The learned counsel appearing for the respondent would submit that even though there were exchange of notices between the parties much prior to issue of Ex.P6 notice by the complainant, he has not mentioned the facts in the complaint and hence he is guilty of suppression of material facts in the complaint. For this proposition, he placed reliance upon a decision of the Apex Court in AIR 1961 SC 1316 [Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay] in which it is held that if the relevant evidence is withheld, the court may draw a presumption to the effect that if the same was produced, it might have gone unfavorable to the petitioner and such a presumption was itself held to be sufficient to rebut the presumption arising under Section 118. The complainant was very much conscious about Ex.D2 notice and Ex.D1 and he also sent a reply under Ex.D4. Touching the circumstances under which the cheques were issued, in the considered view of this court, non-furnishing of particulars as regards Exs.D1, D2 and D4 would probabilise the defence.” 10. The complainant was very much conscious about Ex.D2 notice and Ex.D1 and he also sent a reply under Ex.D4. Touching the circumstances under which the cheques were issued, in the considered view of this court, non-furnishing of particulars as regards Exs.D1, D2 and D4 would probabilise the defence.” 10. He also relied upon paragraph Nos.17 and 18 of the above said decision and submits that evidence itself is sufficient to probablise the defence. Once he had rebutted the presumption, it is the duty of the appellant to prove that the cheque has been issued for discharging legally subsisting liability. Paragraph Nos.17 and 18 reads as follows: “17. Adverting to the facts of the case in hand, the cheque Ex.A1 is dated 25.05.2004. Ex.D1 is dated 18.03.2004. Admittedly, the intervention of police is there for D1 to come to existence. The complainant has not mentioned about Exs.D1 to D4 in his complaint, i.e. to say what transpired between the parties with regard to the debt. The prompt action of the respondent in sending the Ex.D2 notice on 13.03.2004 would further probabilize the defence version. As per the view of the Hon'ble Supreme court in AIR 1961 SC 1316 in Kundan Lal Rallaram's case cited supra, the relevant evidence is with held by the complainant and Section 114 of Evidence Act enables the court to draw a presumption to the effect that if he produced, it would be unfavorable to the complainant and that this presumption raised to the court can, in certain circumstances rebut the presumption of law raised under Section 118 of the Negotiable Instruments Act. 18. In the present case also, a presumption is drawn by this court on the non-production of Exs.D1, D2 and D4 by the complainant and this Court is also of the view that if they were produced, it would come to light that the cheques were obtained in the police station and this presumption is enough to rebut the presumption under Section 118 of the Negotiable Instruments Act. It is also to be mentioned herein that even though the respondent has not examined himself and other witnesses, he has produced Exs.D1, D2 and D4 which are admitted documents by means of which it is seen that the cheques were obtained through intervention of police. Hence, no reliance could be placed upon by this Court on the genuineness of the case of the complainant. Hence, no reliance could be placed upon by this Court on the genuineness of the case of the complainant. In these circumstances, this court is of the firm opinion that Ex.A1 is not supported by consideration and there is no legally enforceable debt existing between the parties and the respondent has rebutted statutory presumption cast upon him. I answer point No.1 in the negative and point Nos.2 and 3 in the affirmative.” 11. The above citation is not applicable to the facts of the present case because in the citation, the complainant sent a letter/Ex.D.1 dated 18.03.2004 wherein he has stated that he received two cheques but on 13.03.2004 the respondent issued a lawyer notice/Ex.D.2 to the complainant stating inter alia that the cheque has been obtained by force in local police station, but here in the case in hand, it is admitted fact that the wife of the respondent has borrowed loan for purchasing of lorry bearing Registration No. TCS 6694 for Rs.1,75,000/- and there was due of payment. Hence, he given a complaint before the Kitchipalayam Police Station on 14.07.2001 and it was taken as C.S.R.No.136 of 2001. At that time, the respondent was called and the matter has been settled and the cheques have been issued on 15.07.2001. The issuance of cheques on 15.07.2001 is not disputed. But he has not taken any steps either against the appellant or against the Police person till 01.10.2001. It is also pertinent to note that the Police person, who was examined as D.W.2, in his evidence, he has stated that after receipt of the complaint dated 14.07.2001 in C.S.R.No.136/2001, both the parties were called and the matter has been settled and the respondent agreed to pay Rs.1,35,000/- and he issued two cheques. So, the evidence of D.W.2 has fortified the argument of appellant. Furthermore, D.W.1, in his cross examination, he has fairly conceded that he is due to the appellant. In Ex.D.5/legal notice, it was categorically stated as _Any have my client in view of paying the dues to you wants the R.C. Book to be returned immediately along with said papers, so that my client can sell the vehicle and settle the dues within six months from today._ In such circumstances, the above citation is not applicable. 12. He also relied upon the decision reported in 2009 (4) MLJ (Crl.) 959, wherein it was held as follows: “10. 12. He also relied upon the decision reported in 2009 (4) MLJ (Crl.) 959, wherein it was held as follows: “10. For the statutory notice issued under Section 138(b) of Negotiable Instruments act, 1881, the petitioner has issued a suitable reply on 05.04.2007, a copy of which has been produced as document No.3 in the typed set of papers. In the said reply notice, the petitioner has clearly narrated what transpired. The said reply notice was issued several months prior to the filing of the suit by the said Balakrishnan, the brother of the respondent herein. In the said reply notice, the petitioner has made it clear that she had given blank cheques as guarantor for her son-in-law and his father. If all these aspects are taken into consideration, it will make it clear that the respondent/complainant has not come with clean hands to the Court. The above said documents produced by the petitioner/accused are enough to show that the institution of the criminal proceedings for an offence under Section 138 of the Negotiable Instruments Act, 1881 is nothing but a sheer abused of process of law and abuse of process of Court. 11. Of course, this Court is aware of the fact that Section 139 of the Negotiable Instruments Act, 1881 gives rise to a presumption that such cheque was received in discharge of a debt or liability. But such a presumption cannot be further extended to presume that there was such a debt or liability. Even assuming that such a debt or liability can be presumed, such a presumption is only a rebuttable presumption. The general presumption that a person shall be presumed to be innocent unless he is proved to be guilty is not in any way affected. The presumption contemplated in Section 139 of the Negotiable Instruments Act, 1881 causes a reverse burden on the accused and such a reverse burden can be discharged by rebutting such presumption. To rebut the presumption under Section 139 of the Negotiable Instruments Act, 1881, it is not necessary for an accused to adduce evidence capable of proving beyond reasonable doubt. It shall be sufficient to prove the contra by preponderance of probabilities and then such presumption shall stand rebutted. The High Court dealing with the petition under Section 482 Cr. To rebut the presumption under Section 139 of the Negotiable Instruments Act, 1881, it is not necessary for an accused to adduce evidence capable of proving beyond reasonable doubt. It shall be sufficient to prove the contra by preponderance of probabilities and then such presumption shall stand rebutted. The High Court dealing with the petition under Section 482 Cr. P.C. should consider whether the materials relied on by the accused shall be enough to dislodge the presumption under Section 139 of the Negotiable Instruments act, 1881 and discharge the reverse burden of proof and thereby cause a reasonable suspicion in the case of the complainant, which will make the entire exercise of trial useless as the same is bound to result in acquittal. 12 .This Court after taking into consideration all the above said aspects, comes to the conclusion that the materials placed before this Court by the petitioner are enough to rebut the presumption and discharge the reverse burden cast on the petitioner/accused. This Court is also of the view that the trial cannot result in conviction as there are enough materials to prove the case of the petitioner/accused on preponderance of probabilities, capable of causing a reasonable suspicion in the case of the respondent/complainant. This Court is also of the considered view that the petitioner has made out a clear case of abuse of process of Court by preponderance of probabilities. Therefore, this Court comes to the conclusion that the petition shall succeed and the criminal proceedings instituted against the petitioner by the respondent in C.C.No.120 of 2007 has got to be quashed.” 13. In the above citation, the defence raised by the accused is that the petitioner's son-in-law, by name, Raj and father of the said Raj, by name, Ayyavu borrowed Rs.2,00,000/- on 19.04.2005 by mortgaging their house property in favour of one Balakrishnan, the brother of the respondent. The said Balakrishnan instead of getting a mortgage deed obtained sale agreement for the said amount. Rs.2,00,000/- was paid as advance and the balance sale consideration of Rs.25,000/- was to be paid in 35 months and also obtained two cheques. In that it was held that the respondent was not come to the Court with clean hands but the presumption under Section 139 of Negotiable Instruments Act has been rebutted. Rs.2,00,000/- was paid as advance and the balance sale consideration of Rs.25,000/- was to be paid in 35 months and also obtained two cheques. In that it was held that the respondent was not come to the Court with clean hands but the presumption under Section 139 of Negotiable Instruments Act has been rebutted. But herein in the case in hand is concerned, it is admitted by the respondent/accused that his wife has borrowed money for purchasing a lorry and she entered into a hire purchase agreement. Since she was default in payment and the vehicle was not in a moving condition, the tyres were removed and the engine has been removed, she has given a complaint and the complaint has been taken as as C.S.R.No.136 of 2001 on 14.07.2001 and on 15.07.2001, the matter was entered into a compromise and cheques have been issued. Even though that factum was not mentioned in the complaint, but the respondent in Ex.D.5, he has mentioned about his due. Further, he seeks for his RC Book for selling the vehicle and repay the loan amount. In such circumstances, I am of the view that the above citation is not applicable to the facts of the present case. 14. He also relied upon the decision reported in 2007 (5) CTC 251, the relevant paragraph reads as follows: “8. The only question now to be considered is whether the cheque issued by the petitioner is towards the discharge in whole or in part, of an debt or other liability. The Explanation provided under Section 138 of the Negotiable Instruments Act. “For the purpose of this Section, 'debt' of 'liability' means a legally enforceable debt or other liability.” 9........... 10. Of course, there is a presumption in favour of the holder under Section 139 of the Negotiable Instruments Act: “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, or any debt or other liability? 11. Of course, there is a presumption in favour of the holder under Section 139 of the Negotiable Instruments Act: “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, or any debt or other liability? 11. Still, when there is material in the Complaint itself rebutting the presumption and on the admitted facts the liability seems to be legally not enforceable debt or other liability, the petitioner need not undergo the ordeal of trial.” But the above citation is not applicable to the facts of the present case since in the quash petition, the learned Brother Judge has held that materials in the complaint itself rebutting the presumption under Section 139 of Negotiable Instruments Act. 15. He also relied upon the decision reported in 2004 MLJ (Crl.) 210, the relevant paragraph reads as follows: “12. It could be seen that there is no denial of the fact of extracting five cheques and some other documents as aforementioned in the first respondent police station in his presence and there is absolutely no denial of all the allegations and the only difference between the above Criminal Original Petition filed by the petitioner and the counter affidavits filed separately by the first and second respondents is that they would allege that there was no coercion or threat and as though the petitioner volunteered to give and deliver those items in the Police Station which is not at all the case of the petitioner and therefore, easy conclusions could be arrived at by this Court that for the alleged parting of the money in favour of the petitioner's son for securing some job with which, neither the first respondent nor the second respondent connect the petitioner in any manner and therefore, there is no reason on the part of the petitioner to volunteer to go to the police station and issue the cheques and deliver the documents on those allegations filed against the petitioner is unreasonable. The petitioner has been forcibly taken to the police station and the first respondent, by misuse of his powers as a police officer, for corrupt reasons, has extracted keeping the petitioner under his illegal custody at the police station and by coercion and threat of registering cases against him and pushing him behind the bars. 13. In these circumstances, the only conclusion that this Court could arrive at is that the first respondent Inspector of Police, joining hands with the second respondent and his associates, who are admittedly parties to the crime in cheating the Government in procuring job for money with the help of men like the said Kannan, who is alleged to be a drop-out from home. For corrupt reasons, the first respondent, throwing to winds, his duties and responsibilities and the dignity attached to the office, particularly since he belongs to the disciplined force, has indulged in criminal offences such as torturing innocent people like the petitioner and helping criminals like the second respondent and his associates, misusing the powers conferred on him for lawful exercise, which would only give way to invoke the disciplinary rules and the relevant provisions of criminal law, both for the acts openly perpetrated under cover of threat, misuse of power as a police officer and for extracting the items mentioned from the petitioner by unlawful means and ways without the petitioner having had any participation in the alleged deal of the second respondent with his son, that is said to have occurred in the year 1999.” But here, the respondent has not given any complaint against the Police Officer as soon as the cheques/Ex.P.2 and Ex.P.3 and the letter of undertaking/Ex.D.1 has been given to the appellant. Neither he issued a notice nor taken any steps before the higher official of the Police. In such circumstances, I am of the view that the above citation is not applicable to the facts of the present case. 16. Now, this Court has to consider the decision relied upon by the learned counsel appearing for the appellant. 17. In the decision reported in 2007 (4) SCC 752 , wherein it was stated that the appellant initiated criminal proceeding against the respondent, the matter was compromised in police station and the cheque has been issued by the respondent in favour of the appellant in pursuance to the said compromise. 17. In the decision reported in 2007 (4) SCC 752 , wherein it was stated that the appellant initiated criminal proceeding against the respondent, the matter was compromised in police station and the cheque has been issued by the respondent in favour of the appellant in pursuance to the said compromise. The cheque got dishonoured and the respondent has admitted his liability to the extent of Rs.7 lakhs and the cheque has been issued in discharging the debt. The plea of the respondent that he signed the cheque under threat is not acceptable. It is appropriate to consider the relevant portion of the decision, which reads as follows: “20. The basic question, however, which arises for consideration before us is as to whether we, in the peculiar facts and circumstances of this case, can delve deep into the matter so as to find out the culpability of the respondent herein and pass a judgment of acquittal in his favour. We do not think that we should do so. Section 377 of the Code of Criminal Procedure has no application in the instant case. Respondent has not preferred any appeal. Even otherwise the complainant had categorically stated in his complaint petition that although his claim was for a sum of Rs. 12 lakhs which amount the respondent is said to have been withdrawn from the bank in contravention of the terms and conditions of the deed of partnership, he accepted his liability at least to the extent of Rs.7,00,000/-. It appears from a plain reading of the complaint petition that the respondent had admitted his liability to the extent of Rs.7,00,000/-. It was found as of fact to be so by the courts below. The said findings do not warrant any interference. The defence raised by the respondent to the effect that the parties had entered into a compromise in the police station and he had to sign a cheque under some threat or coercion had not been accepted by the courts below. There cannot be any doubt whatsoever that had the respondent been able to show that the cheque had been issued not in discharge of a debt but by way of a security pending determination of his liability by an auditor, the matter would have been different. There cannot be any doubt whatsoever that had the respondent been able to show that the cheque had been issued not in discharge of a debt but by way of a security pending determination of his liability by an auditor, the matter would have been different. In such an event, the court could have arrived at a finding that the cheque having been issued on the basis of an anticipated profit which by itself did not create any liability in presenti and the result of the audit might have gone either way, no case under Section 138 of the Act was made out. But, the same is not the case here.” 18. In the above citation, the appellant is the Managing Partner of the partnership firm, where so the appellant intended to initiate criminal proceeding against the respondent, complaint has been given and in that compromise has been entered into and it was agreed for Rs.7 lakhs, post dated cheque has been issued and that has been presented for encashment, which was returned as “stop payment” and hence, complaint has been given. In such circumstances, it was held that once the cheque has been issued for compromise admitting the liability, so, the plea of the respondent that he signed the cheque under threat is not acceptable. In the present case, the wife of the respondent has availed loan from the appellant for purchasing a lorry bearing Registration No.TCS 6694, the respondent/accused stood as a guarantor. Because of default in payment, the appellant decided to take action for seizure of the vehicle. But the vehicle was not in a moving condition, the tyres were removed and engine was taken. Hence, the appellant gave a complaint on 14.07.2001 and on 15.07.2001 the matter was compromised. Even though the appellant demanded the due amount of Rs.1,83,800/-, the respondent/accused submit as Rs.1,00,000/-. Then, it was compromised and the respondent agreed to pay Rs.1,35,00/- and issued two cheques, one cheque dated 01.10.2001 and another cheque dated 15.10.2001 and he also issued a letter of undertaking/Ex.D.1 dated 15.07.2001 and the said letter of undertaking was written by the respondent himself. Hence, the above citation squarely applicable to the facts of the present case. 19. Having issued the cheques/Ex.P.2 dated 10.10.2001 and Ex.P3 dated 15.10.2001 and the letter of undertaking/Ex.D.1 dated 15.07.2001, the respondent kept quite all along and he has issued notice/Ex.D.5 only on 01.10.2001. Hence, the above citation squarely applicable to the facts of the present case. 19. Having issued the cheques/Ex.P.2 dated 10.10.2001 and Ex.P3 dated 15.10.2001 and the letter of undertaking/Ex.D.1 dated 15.07.2001, the respondent kept quite all along and he has issued notice/Ex.D.5 only on 01.10.2001. This attitude of the respondent has proved that with a view to cheat the appellant, he issued a notice. It is appropriate to consider the last paragraph of the notice/Ex.D.5, wherein he has fairly conceded that there was a due. Even in the cross examination of D.W.1, he himself admitted that he is liable to pay the amount due. On perusal of the oral evidence of D.W.3 along with the oral evidence of D.W.1, the evidence of D.W.3 is exaggeration and hence, he is more loyal than the master. So, the evidence of D.W.3 is not reliable since it is an interested evidence and hence, it is hereby discarded. The evidence of D.W.1 and D.W.3 has proved that the cheque has been issued for discharging legally subsisting liability. But the Trial Court has wrongly held that the respondent herein has probablised his defence. So the finding of the Trial Court is perverse. 20. The respondent has sent that notice on 01.10.2001 i.e. after 2-1/2 months and in that also, he has stated that his client, namely, the respondent herein wants the R.C. Book, so that he can sell the vehicle and settle the dues within six months from today, i.e. 01.10.2001. In Ex.D.1, the letter of undertaking, which was written by the respondent himself on 15.07.2001, he has mentioned all those things. But he has not issued any notice either on 16.07.2001 or 17.07.2011 and he has also not taken any steps against the Police Officials. The appellant issued issued notice/Ex.P.8 to the respondent and his wife and for which, the respondent has issued a reply/Ex.P.10 and the wife of the respondent has also issued a reply/Ex.P.13. Furthermore, after that, they have given another complaint by invoking Section 1546(3) Cr. P.C and case has been registered and that has been referred as mistake of fact as per Ex.D.8 and Ex.D.9. Since Ex.D.1 is true and genuine document, the evidence of D.W.2 has support the case of the appellant and the issuance of cheque has been admitted. Furthermore, after that, they have given another complaint by invoking Section 1546(3) Cr. P.C and case has been registered and that has been referred as mistake of fact as per Ex.D.8 and Ex.D.9. Since Ex.D.1 is true and genuine document, the evidence of D.W.2 has support the case of the appellant and the issuance of cheque has been admitted. Hence, the appellant is entitled to invoke presumption under Sections 118 and 139 of Negotiable Instruments Act that Ex.P.2 and Ex.P.3 has been issued for discharging legally subsisting liability. Even though the respondent has raised the defence that it was obtained in the Police Station, as per the dictum of the Hon'ble Apex Court reported in 2007 (4) SCC 752 , the Court cannot held that it was obtained by force since there was a complaint dated 14.07.2001 and it was taken as C.S.R.No.136 of 2001 and the respondent has given Ex.D.1/letter of undertaking, Ex.P.2/cheque dated 10.10.2001 and Ex.P.3/cheque dated 15.10.2001. He kept quite all along and issued a notice/Ex.D.5 dated 01.10.2001, which shows the malafide intention. Hence, the Trial Court without considering all these aspects and came to the conclusion blindly that the cheque has been issued in the Police Station will probablise the defence is unacceptable. It is true that the respondent/accused has to prove the defence by preponderance of probabilities. But he has not probablised his defence. Once he probablised his defence, then only, the onus has been shifted to the complainant to prove that the cheques/Ex.P.2 and Ex.P.3 have been issued for discharging legally subsisting liability. But here the respondent herein has not probablised his defence and so, the onus has not been shifted to the appellant to prove the same. 21. The Appellate Court shall not interfere with the finding of judgment of acquittal unless the judgment of acquittal is perverse. If two views are possible, the view favouring the accused to be taken into consideration. By applying the dictum of the Hon'ble Apex Court reported in 2007 (4) SCC 752 and since the matter was compromised and cheque has been issued and once the issuance of cheque has been admitted by D.W.1 in his cross examination and D.W.2 has fortified the same, I am of the view that the Trial Court without considering Ex.D.1 and Ex.D.5 and without appreciating the cross examination of D.W.1 and D.W.2, has come to the conclusion and acquitted the respondent/accused. Hence, the judgment of acquittal passed by the Trial Court is perverse and hence, it is liable to be set aside. 22. In fine, * This Criminal Appeal is allowed, setting aside the judgment of acquittal dated 14.03.2006 made in C.C.No.364 of 2002 on the file of the learned Judicial Magistrate No.I, Salem. * The respondent/accused is found to be guilty under Section 138 of Negotiable Instruments Act and hence, convicted under Section 138 of Negotiable Instruments Act. * For appearance of the respondent/accused before this Court for questioning of sentence, post this appeal on 30.3.2015.