JUDGMENT : 1. Though matter is listed for admission, by consent of learned advocates appearing for both the parties, same has been taken up for final hearing and has heard at length and it is disposed of finally by this following order. 2. This appeal has been filed by the complainant being aggrieved by the judgment passed by Principal Civil Judge, JMFC, Puttur dated 19.08.2014 passed in CC.No.3902/1999 acquitting respondent-accused for offences punishable under Section 138 of Negotiable Instrument Act, 1881 (for short ‘N.I. Act’). 3. Parties are referred to as per the rank in the trial Court. Facts in brief which has led to filing of this appeal are as under: (a) A complaint came to be lodged by the appellant-complainant under Section 200 of Cr.P.C. alleging thereunder that accused had borrowed a sum of Rs.3,50,000/- from the complainant towards repayment of said amount and as security towards said amount borrowed had issued a cheque for Rs.3,50,000/- drawn on Syndicate Bank, Kadaba Branch in favour of the complainant with an assurance that said cheque would be honoured when presented and yet when said cheque came to be presented for encashment it was returned with an endorsement “insufficient funds” as per memo dated 23.04.1999. (b) On 05.05.1999, a legal notice came to be issued by the complainant calling upon accused to pay the amount covered under dishonored cheque within the stipulated period and said notice was duly served on accused on 08.05.1999 and it was duly replied by accused through his advocate by denying the averments made in the notice. Hence, alleging that accused had committed an offence punishable under Section 138 of N.I. Act, complaint came to be filed before the jurisdictional Court of Magistrate. 4. After taking cognizance, sworn statement of complainant was recorded and process was issued to accused to appear before Court and on appearance of accused, plea was recorded and on accused pleading not guilty and praying for being tried, matter came to be posted for recording of evidence of the complainant. Accordingly, complainant got himself examined as PW.1 and got marked exhibits P1 to P5. Thereafter, he was cross examined. Later, statement of respondent/accused was recorded under Section 313 and accused also got himself examined as DW.1 and got marked exhibits D1 and D1(a) and closed his side. 5. Accordingly, complainant got himself examined as PW.1 and got marked exhibits P1 to P5. Thereafter, he was cross examined. Later, statement of respondent/accused was recorded under Section 313 and accused also got himself examined as DW.1 and got marked exhibits D1 and D1(a) and closed his side. 5. On appreciation of evidence tendered by the parties and considering the material evidence available on record, trial Court acquitted the respondent-accused for the offence punishable under Section 138 of N.I. Act. 6. Allegations made in the complaint is accused had borrowed a sum of Rs.3,50,000/- from the complainant and towards discharge of said debt, he had issued a cheque for a sum of Rs.3,50,000/- drawn on Syndicate Bank, Kadaba Branch dated 13.04.1999 and on presentation of said cheque, it came to be dishonored. A notice was got issued and had been replied with a total denial. 7. A perusal of judgment passed by trial Court would disclose that on matter being remanded to the trial Court by this Court by order dated 19.02.2014 passed in Crl. A No.367/2009, on account of there being a serious dispute with regard to execution of Ex.D1- receipt dated 12.05.2000 stated to have been executed by the complainant in favour of accused acknowledging discharge of liability under the disputed cheque, complainant sought for Ex.D1 being referred to an expert. Here at the instance of complainant, Ex.D1 came to be referred to an expert for opinion and accordingly, a report came to be submitted by Sri. Shankarappa (PW-2) and it was marked as Ex.C1. 8. Learned trial Judge after taking into consideration said report and deposition of PW.2, who had opined that signature found in Ex.D1, which came to be marked as Ex.D1(a) is that of the complainant and also further opinion of PW.2 which was to the effect that revenue stamp found in Ex.D1 had been lifted from some other document and appears to have been affixed on Ex.D1-receipt, held that his evidence has remained undisturbed. It was further held by the trial Judge, that complainant being professional money lender and running a Finance Company had been unable to explain as to how he could have lent a sum of Rs.3,50,000/- to the accused in the year 1999 in his individual capacity that too without obtaining any documents and his version is unbelievable. It was further held by the trial Judge, that complainant being professional money lender and running a Finance Company had been unable to explain as to how he could have lent a sum of Rs.3,50,000/- to the accused in the year 1999 in his individual capacity that too without obtaining any documents and his version is unbelievable. As such, it came to be held by the trial Court, plea of the complainant is highly improbable and as such it was held that evidence of the complainant of advancing loan of Rs.3,50,000/- to the accused as pleaded and deposed by the complainant is doubtful. On these primary grounds as discussed in detail by the trial Judge, accused came to be acquitted. 9. I have heard the arguments of Smt. Haleema Ameen, learned advocate appearing on behalf of Sri. S. Vishwajith Shetty, for appellant and Sri. Arun Shyam, learned counsel appearing for respondent-accused. Perused the records. 10. It is the contention of Smt. Haleema Ameen, learned counsel appearing for appellant that trial Judge committed a serious error in not appreciating the material evidence available on record in proper perspective, in as much as report of hand writing expert discloses that revenue stamp, which purportedly contains the signature of the complainant had been lifted/removed from some other document and affixed on Ex.D1, and same was a good ground available to trial Court to arrive at conclusion that said document was fabricated or concocted document and non-consideration of this vital evidence had resulted in an erroneous judgment being rendered by trial Judge in acquitting the accused. She would also contend that accused had played fraud on trial Court by propounding a false document and as such trial Court ought not to have accepted the plea of the accused. She would elaborate her submissions by contending that when trial Court had accepted that revenue stamp found on Ex.D1-receipt contained the signatures of the complainant, which document was propounded by the accused and as such burden was on the accused to prove that said document was executed by the complainant in respect of a different transaction. Hence, she contends that trial Court ought to have convicted the accused and should not have acquitted him. 11. Hence, she contends that trial Court ought to have convicted the accused and should not have acquitted him. 11. She would further submit that signature found on cheque is not disputed by her and there being a presumption with regard to existence of debt and the said presumption had not been rebutted by the accused. Hence, she prays for allowing the appeal. 12. Per contra, Sri. Arun Shyam, learned advocate appearing for respondent-accused would support the judgment passed by the trial Court and submits that initial burden cast on the complainant to establish that there was legally enforceable debt had not been established or proved and as such question of accused rebutting the statutory presumption did not arise. He would submit that even otherwise, it is clearly proved by evidence of PW-2 and report of the expert marked as Ex.D1 that signature found on said document was that of the complainant and as such he prays for dismissing the appeal. 13. Having heard the arguments of learned advocates appearing for parties and on careful consideration of rival contentions raised at the Bar and on scrutiny of records secured from trial Court, it would emerge therefrom that there is no dispute between the parties with regard to subject cheque bearing No.703558 having been issued by accused to the complainant. Signature found on said cheque, which came to be marked as Ex.P1 is also not disputed, the accused and said signature of accused came to be marked as Ex.P.1(a). However, plea of the accused is that he had issued said cheque in respect of a different transaction he had with the accused, namely he had borrowed a sum of Rs.1,50,000/- from complainant and towards said transaction, he had issued the cheque in question and after repaying the said amount of Rs.1,50,000/- to the complainant, he had acknowledged the same by executing a receipt dated 12.05.2001 Ex.D1 in favour of accused and thus no amount was due by him to the complainant 14. At this juncture, it would opt and proper to note that the complainant himself states in his complaint at paragraph 3 that on said cheque being dishonored on presentation, he got issued a legal notice on 05.05.1999, which was duly served on accused on 08.05.1999 and a reply was sent by accused through his advocate denying his liability. At this juncture, it would opt and proper to note that the complainant himself states in his complaint at paragraph 3 that on said cheque being dishonored on presentation, he got issued a legal notice on 05.05.1999, which was duly served on accused on 08.05.1999 and a reply was sent by accused through his advocate denying his liability. However, for reasons best known, said reply notice is not produced by either of the parties. The material on record would also disclose that there is no quarrel with regard to fact that complainant is running a finance business under the name and style of “Nethravathi Finance Corporation”. However, it has been the contention of the complainant that he had lent Rs.3,50,000/- to the accused as a hand loan without obtaining any documents. No doubt this creates a serious doubt with regard to purported and alleged transaction namely a sum of Rs.3,50,000/- having been lent by the complainant to accused without obtaining any loan document fro him (accused). However, this Court cannot loose sight of the fact that accused himself admits that he had issued the cheque Ex.P1 in favour of the complainant. In respect of a different transaction, namely, for having borrowed hand loan of Rs.1,50,000/- from the complainant and for discharge of said debt, he had issued a blank cheque to the complainant which has been misused by the complainant. From these facts it emerges that complainant and accused persons are known to each other and there has been transaction in the past between them. It would also emerge that even in respect of earlier loan transactions, accused had not executed any document in favour of complainant, but had only issued a cheque as security. Thus, presumption available in favour of the complainant was required to be rebutted by the accused. In order to rebut said presumption accused as per the mandate of Section 139 of N.I. Act, he sought to establish his plea by relying upon Ex.D1 namely a purported receipt dated 12.05.2000 said to have been issued by the complainant acknowledging the receipt of Rs.1,50,000/- towards the amount covered under cheque Ex.P1 and accused had very heavily relied upon on said document by contending that the complainant on receiving the amount of Rs.1,50,000/- had issued said receipt and there is a specific reference to cheque No.703558 dated 13.04.1999 namely, cheque in question. In other words, it was contended by the accused that debt which accused owed to the complainant was only a sum of Rs.1,50,000/-, same had been paid or debt had been discharged and there was no other debt due and payable by the accused to the complainant. 15. A bare reading of Section 139 would disclose that a rebuttable presumption is created under Section 139 that cheque was issued by the drawer in discharge of a debt or liability owned by him to its holder. In other words, there is legal presumption that cheque was issued for discharging an antecedent liability and that presumption can be rebutted only by person, who draws the cheque. Said presumption is in favour of holder of the cheque. In the first instance, trial Court by judgment had dismissed the complaint on 08.12.2008 and had acquitted the accused. Complainant had preferred an appeal before this Court in Crl.A.No.367/2009. Co-ordinate Bench while remanding the matter back to the trial Court by judgment dated 19.02.2014 has issued the following directions:- “(a) Complainant shall take steps to examine the handwriting expert before Court. (b) Learned trial judge shall examine accused under Section 313 Cr.P.C., if any incriminating evidence is given by the handwriting expert. (c) Learned trial Judge shall hear parties and decide the case on merits, within a period of six months from the date of receipt of a copy of this judgment.” 16. A perusal of the above judgment would disclose that emphasis was on the disputed signature found in Ex.D1. In this background, when Ex.D1 along with evidence of PW.2/handwriting expert, who came to be examined on behalf of the complainant along with his report Ex.C1 are perused, it would disclose that in the report Ex.C1, the expert has opined as under:- (1) “The person who wrote the red enclosed standard signatures stamped and marked S1 to S4 also wrote the red enclosed questioned signature similarly stamped and marked Ex.D1a. (2) The questioned signature marked as Ex.D1a is confined to revenue stamp is lifted from original document and reaffixed on the present document.” In his reasons for tendering such opinion, PW2 has opined as follows: “On examination of questioned signature marked as Ex.D1a is similarly observed in standard signatures marked as S1 to S4. Similarities are also observed in the general writing habits of questioned and the standard signatures. 17. Similarities are also observed in the general writing habits of questioned and the standard signatures. 17. Having opined that the signatures are one and the same, said expert has also opined that revenue stamp with genuine signature Ex.D1(a) has been lifted from original document and re-affixed on Ex.D1 document. Said opinion reads as under: “On examination of questioned signature marked Ex.D1a under Video Spectral Comparator–5000 using different light sources and in comparison microscope it is noticed that the incomplete of terminal part of terminal character ‘h’, as well as underscoring which reveals that the existed signature is not executed after affixing of the revenue stamp. On examination of questioned signature marked Ex.D1a which is confined only to revenue stamp under transmitted light source under VSC-5000 instrument observed that soily nature at the serrated edges due to the adhering of earlier document paper fibres and so also the gum substance, which reveals that the revenue stamp with genuine signature Ex.D1a is lifted from its original document and reaffixed on Ex.D1 document.” Thus, presumption available under Section 139 was sought to be rebutted by the accused in the instant case on two grounds namely; (a) He had borrowed Rs.1,50,000/- from the complainant; and (b) Same had been repaid and receipt was obtained under Ex.D1 which contains complainant’s signature. 18. In so far as first rebuttable presumption, which was available to accused regarding borrowal of Rs.1,50,000/- from the complainant and same having been repaid has not been proved, in as much as, no documentary evidence was placed on record to establish such borrowing no witnesses were examined to prove there was such transaction. Further Section 313 statement of accused came to be recorded after recording evidence of PW.2/handwriting expert and incriminating evidence found against accused when confronted has been denied by accused in his Section 313 statement and accused did not lead any further evidence to rebut the presumption or prove his plea. In other words, the only rebuttable presumption, which accused intended to rely upon being Ex.D1 was not proved or in other words presumption available in favour of the complainant or holder of the cheque was not rebutted successfully by accused. Thus, presumption arising in favour of the complainant remained intact. In other words, the only rebuttable presumption, which accused intended to rely upon being Ex.D1 was not proved or in other words presumption available in favour of the complainant or holder of the cheque was not rebutted successfully by accused. Thus, presumption arising in favour of the complainant remained intact. In that view of the matter, trial Court was not justified in acquitting the accused only on ground that complainant being a money lender would not have lent the said amount to the accused without obtaining any documents or complainant had established that there was legally enforceable debt. It is also not the case of accused that when he borrowed a sum of Rs.1,50,000/-, he had executed any document in favour of the complainant and had issued a cheque. But on the other hand, it was also his specific defence that even at the time of borrowing of Rs.1,50,000/- he had not executed any document and towards security of said debt, he had only issued cheque of Rs.1,50,000/- in favour of the complainant. This would only indicate there were transactions between complainant and accused even in the past and except cheque being offered, no other document was ever executed by accused. 19. This Court has held as already noticed hereinabove, that execution of Ex.D1 is not proved and necessary corollary would be that at no point of time there was any document executed by the accused in favour of complainant for the amount borrowed by him from complainant. Thus, on this ground also judgment of trial Court cannot stand test of law. For the reasons afore stated, I proceed to pass the following: ORDER (a) Criminal appeal is hereby allowed. (b) Judgment passed by the Principal Civil Judge and JMFC, Puttur dated 19.08.2014 in C.C. No.3902/1999 is hereby set aside and respondent-accused is convicted for the offence punishable under Section 138 of N.I. Act and is ordered to pay fine amount of Rs.4,00,000/- and out of said amount of fine, complainant is ordered to be paid or entitled to receive a sum of Rs.3,50,000/- and a sum of Rs.50,000/- shall go to the State. (c) In the event respondent-accused failing to deposit the said fine amount within a period of three months, he shall undergo Simple Imprisonment of one year.