JUDGMENT AND ORDER : 1. By filing this appeal complainant-appellant has assailed the judgment dated 12.7.2006 passed by learned Additional Chief Judicial Magistrate No. 3, Kota, whereby the complaint filed against the accused-respondents for the offence under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act of 1881’) has been dismissed while acquitting the accused of the charge under Section 138 of the Act of 1881. 2. Briefly stated, the facts giving rise to the appeal are that the complainant-proprietor of M/s. Modi Enterprises obtained distributorship of M/s. Aquatech International Ltd. for selling water purifiers. A sum of Rs. 10,000/- was deposited as security. The goods were to be given to the complainant through C & F M/s. Taluka Marketing. As the goods of the company could not capture the market, the complainant surrendered its distributorship. By way of settlement dated 4.8.1998, it was decided that the accused-persons, who were Managing Director and Director of M/s. Aquatech International Ltd. will be returned the unsold goods lying with the complainant and they would return an amount of Rs. 1,45,700/- as price of returned goods. It was alleged by the complainant that three cheques bearing No. 875322 dated 25.8.1998 in sum of Rs. 50,000/-; No. 875323 dated 10.9.1998 in sum of Rs. 50,000/-; No. 875324 dated 20.9.1998 in sum of Rs. 45,700/- were issued by the complainant with the request that these cheques may be presented for encashment in the month of November, 1998. When the cheques were presented for encashment, they were dishonoured with the note of insufficient fund. The complainant served a notice upon accused through his Advocate which was received by them. Even then no payment was made and hence, complaint was filed. 3. Three complaints were initially filed in respect of three different cheques, which were consolidated by the trial court and were decided by a common judgment dated 12.7.2006. 4. Learned counsel appearing for the complainant-appellant has stated that the learned trial court has not taken into consideration the material evidence available on record, which was sufficient to convict the accused-persons. In furtherance of the settlement dated 4.8.1998, unsold articles were returned back to Harish Nagewala, accused-respondent No. 1. The accused were under obligation for encashment of the cheques issued by them in discharge of their legal liability, in which they failed. Learned trial court has not correctly appreciated the evidence available on record. In furtherance of the settlement dated 4.8.1998, unsold articles were returned back to Harish Nagewala, accused-respondent No. 1. The accused were under obligation for encashment of the cheques issued by them in discharge of their legal liability, in which they failed. Learned trial court has not correctly appreciated the evidence available on record. Learned counsel prays that the appeal may kindly be allowed and the judgment impugned be quashed and set-aside. 5. Per contra, learned counsel for the accused-respondents, has submitted that as per the agreement dated 13.12.1997, by which the distributorship was given to the complainant, there was no condition to get the unsold goods back. But showing good business gestures, M/s. Aquatech International Ltd. agreed to take back the unsold items vide settlement dated 4.8.1998. It was decided between the parties that the amount of cheques would be paid only after the unsold goods are returned back to the company. But the items were not returned by the complainant to M/s. Aquatech International Ltd. So the cheques issued by the accused on behalf of their company were not issued in discharge of the liability or any legal debts. In fact, the cheques were issued in advance and were liable to be encashment only if the goods were returned by the complainant. 6. Learned counsel submits that the learned trial court has rightly come to the conclusion that in absence of return of unsold goods, the accused-persons were not under obligation to encash the cheques. The judgment impugned is perfectly in consonance with the evidence. He submits that in view of above, the appeal is likely to be rejected. 7. Learned counsel for the respondents have also relied upon following judgments:- (i) Krishna Janardhan Bhat vs. Dattatraya G. Hegde, AIR 2008 SC 1325 . (ii) M/s. Kumar Exports vs. M/s. Sharma Carpets, AIR 2009 SC 1518 . 8. I have given thoughtful consideration to the arguments advanced by both the sides and also to the evidence available on record. I find that the judgment impugned does not suffer from any infirmity. In light of the arguments mentioned above, the main issue on which decision of this appeal hinges is whether the unsold goods were actually returned by the complainant to accused and thus, the cheques issued by them could be presumed to have been issued in discharge of their legal liability. 9. In light of the arguments mentioned above, the main issue on which decision of this appeal hinges is whether the unsold goods were actually returned by the complainant to accused and thus, the cheques issued by them could be presumed to have been issued in discharge of their legal liability. 9. The complainant PW-1 has stated in his evidence before the learned trial court that he returned the unsold goods to the accused in furtherance of the settlement dated 4.8.1998 and in return, three cheques worth Rs. 1,45,700/- were issued by them in his favour. He has specifically stated that he returned the goods to Harish Nagewala on 24.8.1998. The learned trial court has observed that there are contradictions in regard to date of return of the goods which have occurred in the evidence. In the complaint, it has been stated that the goods were returned on 4.8.1998, but PW-1 admits in his cross-examination that Harish Nagewala took the unsold goods on 24.8.1998. He has unequivocally stated that he did not send any goods on 4.8.1998. The complainant has also admitted that he did not get any receipt from Harish Negewala regarding the returned goods. He has stated that Harish Nagewala took away the goods returned to him in dicky of his car and not by way of any transport company. 10. In light of these statements, it is apparent that the factum of return of unsold goods by the complainant to accused is under suspension on below mentioned grounds. Firstly, no receipt of these goods is said to have been obtained by complainant; secondly, it appears improbable that the water purifiers worth Rs. 1,45,700/- would be transported in dicky of the car and thirdly, there is a serious dispute about the date on which the goods were returned to the accused. It is not clear that the disputed cheques were issued by accused after the unsold goods were returned to them. The cheques could be presumed to have been issued in discharge of legal debt/liability only in case the unsold goods are proved to have been returned prior to it to the accused. Then only, liability would arise on the accused to pay off the value of goods returned by complainant. But the fact of return of goods has not been proved or is atleast under serious doubts. Then only, liability would arise on the accused to pay off the value of goods returned by complainant. But the fact of return of goods has not been proved or is atleast under serious doubts. Preponderance of improbabilities in the case set up by complainant disentitles him to claim the presumption under Section 139 of the Act of 1881. The principles laid down by the Hon’ble Supreme Court in this regard in the judgments relied upon by learned counsel for accused respondents are as follows:- (i) In M/s. Kumar Export’s case (supra), the Hon’ble Supreme Court has held as under:- “To rebut statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt – Accused may adduce direct evidence to prove that note in question was not supported by consideration and that there was no debt or liability to be discharged by him – Court need not insist in every case that accused should disprove nonexistence of consideration and debt by leading direct evidence because existence of negative evidence is neither possible nor contemplated – To disprove the presumptions, accused should bring on record such facts and circumstances, upon consideration of which, Court may either believe that consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist – Respondent failed to establish his case under Section 138 – Impugned judgment of High Court liable to be set aside.” (ii) In Krishna Janardhan Bhat’s case (supra), the Hon’ble Supreme Court has held as under:- “25. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is “preponderance of probabilities.” Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.” 11. As per Section 139 of the Act of 1881, the general presumption is that holder of a cheque received the cheque for the discharge, in whole or in part, or any debt and other liability, unless otherwise is proved. As per Section 139 of the Act of 1881, the general presumption is that holder of a cheque received the cheque for the discharge, in whole or in part, or any debt and other liability, unless otherwise is proved. In the case in hand, whatever evidence is available is sufficient to show that the presumption under Section 139 of the Act of 1881 is not liable to be drawn. As per cross-examination of PW-1, their appears preponderance of probabilities that the goods were not returned by the complainant to accused. Consequently, the cheques allegedly issued by the accused cannot be presumed to have been issued in discharge of the liability, because the factum of return of goods is not proved. Presumption under Section 139 of the Act of 1881 would have been drawn only when it could be proved that the goods worth Rs. 1,45,700/- were returned by the complainant to the accused, but this is not the case. Preponderance of probabilities depicted by the cross-examination of the complainant is sufficient to rebut the statutory presumption. The accused-respondents are not under obligation to prove their defence beyond reasonable doubt, as is expected from the complainant. In view of the evidence available on record, accused respondents have successfully refuted the case of complainant appellant. 12. In my considered opinion, the judgment impugned passed by the learned trail court appears to be legally perfect and does not suffer from any infirmity. Resultantly, the appeal is dismissed while upholding the judgment dated 12.7.2006.