JUDGMENT & ORDER : 1. Heard Mr. DR Chouhdury, learned counsel appearing for the appellant as well as Mr. D Bhattacharjee, learned counsel appearing for the respondent. 2. This is an appeal under Section 378(4) of the CrPC from the judgment and order of acquittal dated 27.05.2016 delivered in case No. NI 19/2013 by the Addl. Chief Judicial Magistrate, West Tripura, Agartala. 3. By the order dated 04.08.2016, the appeal was admitted inadvertently without leave. Later on, the appellant filed an application for leave being IA 01/2018 (in Crl. A. 23/2016) which was allowed by the order dated 06.08.2016. 4. In the said order, the objection raised by the respondents in respect of the belated filing of the appeal has been taken note of but in order to regularize the records, having due regard to the substantive ends of justice, leave was granted subject to payment of Rs.1,000/-, which the appellant has already paid. 5. Mr. Bhattacharjee, learned counsel at the outset has reiterated the said ground of objection, but the respondent has neither challenged the order dated 06.08.2016 nor have they asked for any accommodation for challenging the said order. As such, the said objection stands discarded. 6. Brief facts leading to filing of the complaint under Section 138 of the Negotiable Instruments Act, 1881 may be summarized at the outset. The respondent had purchased one Tata JD Backhoe Loader (earth cutting machine) from the complainant-appellant on a consideration price of Rs.9,00,000/-. In order to pay the said consideration price of the Tata JD Backhoe Loader having registration No. TR01 P 1679, it has been stated in the complaint that the respondent issued two separate cheques being the cheque No. 636258 for an amount of Rs.3,00,000/- dated 21.11.2012 and the cheque No. 636259 for an amount of Rs.6,00,000/- dated 21.11.2012 in favour of the complainant-appellant on the State Bank of India, MBB College Campus Branch. The complainant, in order to encash, deposited those cheques in his account in the State Bank of India, RMS Choumuhuni Branch on 01.01.2013. 7. On the same date, i.e. 01.01.2013 he got the banker’s note that for insufficiency of funds in the account of the accused- respondent, both the cheques had bounced. The complainant, in order to encash, deposited those cheques in his account in the State Bank of India, RMS Choumuhuni Branch on 01.01.2013. 7. On the same date, i.e. 01.01.2013 he got the banker’s note that for insufficiency of funds in the account of the accused- respondent, both the cheques had bounced. Immediately, he arranged for issuance of the demand notice through his authorized lawyer and such notice was issued on 15.01.2013 by registered post with A/D. By the said notice, the lawyer asked the accused respondent to make payment of Rs.9,00,000/- within 15 days from the date of notice, otherwise, the complainant-appellant will be advised to take appropriate action available at law. 8. Since the acknowledgement card did not return, the said lawyer addressed a letter to the Post Master, Agartala Head Post Office and by the communication dated 23.02.2013 (Exbt- 6) the Post Master, Agartala Head Office had clearly communicated that the registered article (the notice) was delivered to the addressee on 18.01.2013. 9. The accused respondent by issuing a note dated 21.11.2012 (Exbt-8) has clearly admitted that the price for purchasing the said Tata JD Backhoe Loader was settled at Rs.9,00,000/- and in order to pay the said consideration price, he has issued those cheques. The said note (Exbt.-8) has not been questioned at any point of time by the accused-respondent. 10. Since the accused respondent even after the demand did not pay the said amount within the stipulated time, the complaint was filed in the Court of the competent jurisdiction on 23.02.2013 and after examination of the complainant under Section 200 of the CrPC the process was issued and the accused respondent participated in the proceeding. In due course, the statement of accusation was read out to him. The statement of accusation, as read out to the accused respondent, is as under:- “It is alleged by Sri Benu Roy that you Rajib Gosh issued two cheques bearing No.636258 dated 21.11.12 for Rs. 3,00,000/- and No. 636259 dated 21.11.12 for Rs. 6,00,000/- drawn on SBI, MBB College Campus Branch in favour of complainant. That the complainant deposited both the cheques on 01.01.13 to his banker SBI, RMS Chowmuhani Branch but it was dishonoured for insufficient fund by memo dated 01.01.13. 3,00,000/- and No. 636259 dated 21.11.12 for Rs. 6,00,000/- drawn on SBI, MBB College Campus Branch in favour of complainant. That the complainant deposited both the cheques on 01.01.13 to his banker SBI, RMS Chowmuhani Branch but it was dishonoured for insufficient fund by memo dated 01.01.13. That thereafter on 15.01.13 a demand notice under registered cover was sent to you but then also you did not pay the amount and thereby you committed an offence punishable U/s 138 of N.I. Act and within the congnizance of this court.” The accused-respondent however pleaded innocence and claimed to be tried. 11. In order to substantiate the said statement of accusation the complainant examined himself and narrated the occurrence by stating that he sold out Tata JD Backhoe Loader earth cutting machine bearing registration No. TR01 P 1679 to the respondent on a consideration price of Rs.9,00,000/-. 12. In order to discharge the liability of payment of the consideration price, the accused respondent issued two cheques bearing No. 636258 dated 21.11.2012 for an amount of Rs.3,00,000/- and another cheque bearing No. 636259 dated 21.11.2012 for an amount of Rs.6,00,000/-. When he deposited the said cheques for encashment on 01.01.2011 in the State Bank of India, RMS Choumuhuni Branch, on the same date the banker informed him that both the cheques were dishonoured for insufficiency of funds. On receipt of the said information from the Bank that the cheques could not be honoured due to insufficiency of funds, he sent a notice on 15.01.2013 to the accused person demanding Rs.9,00,000/- and the notice was received by the accused respondent on 18.01.2013. 13. In due course, he filed the complaint and he admitted the documents such as the dishonoured cheque No.636258 dated 21.11.2012 (Exbt.-1), the dishonoured cheque No.636259 dated 21.11.2012 (Exbt.-2), the bank memorandum dated 01.01.2013 stating the reason of dishonour of the cheque (Exbt.-3), the advocates notice dated 15.01.2013 (Exbt.-4), the counter foil of the deposit slip dated 01.01.2013 (Exbt.-5), the communication from the Post Master, Agartala Head Office to Sri. A Das, Advocate dated 23.03.2013 (Exbt.-6), the envelope containing the communication from the Post Master (Exbt.-7), the acknowledgement letter dated 20.11.2012 untraced by the accused respondent (Exbt.-8). 14. The complainant, PW1 was cross-examined by the accused respondent. The respondent had projected that the copy he received along with the summon was a copy of the complaint not signed by PW1. A Das, Advocate dated 23.03.2013 (Exbt.-6), the envelope containing the communication from the Post Master (Exbt.-7), the acknowledgement letter dated 20.11.2012 untraced by the accused respondent (Exbt.-8). 14. The complainant, PW1 was cross-examined by the accused respondent. The respondent had projected that the copy he received along with the summon was a copy of the complaint not signed by PW1. In the cross examination, the complainant-appellant has stated that one Dulal Debnath was his employee and he had seen Suman Debnath only once, but he did not know any person, namely, Subhankar Pal. PW 1 has reiterated that the consideration price of the Tata JD Backhoe Loader was fixed at Rs.9,00,000/-. 15. PW 1 has admitted that Dulal Debnath looked after his business transactions but he has denied that Dulal Debnath had received any amount in respect of the transaction of sale but he has admitted that Dulal Debnath might have taken Rs.1,00,000/- from Rajib Ghosh but he had not given the said amount to the complainant-appellant. 16. In the course of cross-examination, the complainant-appellant identified the handwriting on the receipt issued by Dulal Debnath (Exbt.-A). He has further admitted that he had not filed any letter written by the complainant to the Post Master, Agartala Head Office. He has admitted that the demand notice that was sent to the accused-respondent did not carry his signature. 17. PW2, Dulal Debnath has admitted that the accused-respondent paid him Rs.1,00,000/- “as advance for renting the earth cutter JD” out of Rs.2,50,000/- on the basis of the agreement entered between the complainant-appellant and the respondent-accused person. But he has categorically denied in the cross-examination and stated that he had received the said sum of Rs.1,00,000/- for the sale purpose. 18. The accused respondent has in his cross examination stated that he paid Rs.1,00,000/- in cash to PW2 and after a fortnight he paid the rest of the amount I,.e. Rs.8,00,000/- in cash to the complainant appellant. On 11.12.2012 the complainant came and took Rs.8,00,000/- in cash from the office of the accused-respondent. It has also been asserted that in presence of Subhankar Pal and Sunam Debnath he paid that amount but he did not take any receipt for such payment, nor did he take back the cheques he had issued for discharging his liability of paying the consideration price. 19. DW2 has corroborated the payment of Rs.8,00,000/- on a particular date, i.e. 11.12.2012. 19. DW2 has corroborated the payment of Rs.8,00,000/- on a particular date, i.e. 11.12.2012. On that date, even the DW2 collected a sum of Rs.50,000/- from the accused respondent but he denied the suggestion that on that date at a particular time he did not receive any amount from the accused-respondent. 20. DW3, Subhankar Pal, another chance-witness has stated in the same line as has been stated by DW2. He has stated that he has witnessed that the accused-respondent paying a sum of Rs.10,00,000/- in cash. At that time, Subhankar Pal, DW3 was there because he came to collect a sum of Rs.2,00,000/- from him. He has categorically stated that while receiving the cash the complainant did not return the cheques but assured the accused respondent to return those two cheques in the course of the day. In the cross-examination, he however denied the suggestions projected in contrast to his statements. 21. Having appreciated the evidence, both documentary and oral as adduced by the complainant and the accused-respondent, the Magistrate(Addl. Chief Judicial Magistrate, West Tripura, Agartala)after hearing the parties at length acquitted the accused respondent from the charge of dishonour of cheques, cognizance of which was taken for purpose of trying the said offence. By the impugned judgment and order of acquittal the trial judge delivered order of acquittal on observing that, “...... it has already been proved that the accused has not issued the cheque in discharge of the legal liability to the complainant and validly there was no communication from the side of the complainant to the accused for paying the amount with the help of the demand notice because the demand notice does not bear the signature of the sender. Moreover, it has already been proved that as per Exbt.-6 and Exbt.-7, the complainant has filed the case before the cause of action has arisen. Thus, it cannot be said that the complainant has proved all the ingredients of Section 138 of the NI Act to bring out the guilt against the accused person.” On challenging the said judgment, this appeal has been filed. 22. Mr. DR Choudhury, learned counsel has submitted that the finding of acquittal is based on complete non-appreciation of material evidence. Further, the reasons so assigned for acquitting the accused respondent is completely in contrast to the provisions of law. 22. Mr. DR Choudhury, learned counsel has submitted that the finding of acquittal is based on complete non-appreciation of material evidence. Further, the reasons so assigned for acquitting the accused respondent is completely in contrast to the provisions of law. That apart, the finding as returned in respect that the complainant appellant failed to prove that the accused respondent had legal liability to discharge and for failure to discharge that liability he was rightfully prosecuted. 23. Mr. Choudhury, learned counsel has further submitted that while accepting rebuttal of presumption as can be drawn under Section 139 of the NI Act, 1881, the fundamental principles of appreciation and balancing have been given a go-bye. In this regard, Mr. Choudhury, learned counsel has placed his reliance on Hiten P. Dalal vs. Bratindranath Banerjee, reported in AIR 2001 SC 3879. 24. From the other side, Mr. D. Bhattacharjee, learned counsel has strenuously argued that the accused-respondent has successfully discharged his onus by proving that there was no legal liability to be discharged by the accused-respondent. The liability of payment of the consideration price, he had discharged by paying two installments in cash, viz., Rs.1,00,000/- which was paid to PW-2 and the rest of the amount, i.e. Rs.8,00,000/- to the complainant-appellant in the office of the accused-respondent on 11.12.2012. Thus, there is no infirmity in the judgment and order of acquittal. 25. Mr. Bhattacharjee, learned counsel has also, in order to buttress the submissions, relied on two decision of Apex court viz., M. S. Narayana Menon @ Mani vs. State of Kerala & Anr., reported in (2006) 6 SCC 39 where the Apex court has discussed the law of presumption and held that “the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non existence of the consideration so probably that a competent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption what is needed is to raise a probable defence. Even for the said purpose the evidence adduced on behalf of the complainant could be relied upon.” 26. In order to rebut the presumption in law, Mr. For rebutting such presumption what is needed is to raise a probable defence. Even for the said purpose the evidence adduced on behalf of the complainant could be relied upon.” 26. In order to rebut the presumption in law, Mr. Bhattacharjee, learned counsel has submitted that the accused respondent has led adequate evidence to probabilize that he had no legal liability to be discharged on the face of the payment he made by cash. 27. Mr. Bhattacherjee, learned counsel has also placed reliance on another decision of the Apex court in John K. Abraham vs. Simon C. Abraham & Anr., reported in (2014) 2 SCC 236 . 28. The Apex court in John K. Abhram (supra) has enunciated the law by restating that in order to draw presumption under Section 118 read along with Section 139 of the NI Act the burden was heavily on the complainant to show that he had received funds and the accused was bound to make payment while issuing the cheque in favour of the complainant. 29. Having appreciated the submission made by the learned counsel for the parties, this court finds that the ground on which the impugned judgment and order of acquittal has been structured is preposterous. Section 138(b) of the NI Act casts an obligation on the drawee of the cheque which is dishonoured that after receipt of the information he makes a demand for the payment of the said amount (the amount mentioned in the cheque) by giving a notice in writing to the drawer of the cheque within 30 days from the day of receipt of the information by him from the bank regarding the dishonour of the cheque for insufficiency of the fund etc. 30. The said demand can be made by the complainant through a lawyer as his authorized agent by giving the details. It is not necessary in law that the complainant himself would sign that demand. Such interpretation of making the demand, as provided under Section 138(b) would only frustrate the legislative object for which Section 138 of the NI Act is enacted. 31. That apart, the fundamental ground on which the accused respondent has been acquitted is that the complainant has failed to prove the legal liability against the accused respondent. This finding is the basis on which the acquittal has been directed. 31. That apart, the fundamental ground on which the accused respondent has been acquitted is that the complainant has failed to prove the legal liability against the accused respondent. This finding is the basis on which the acquittal has been directed. Before this court embarks on interpreting Section 139, which is very unique to the scheme of the NI Act, it would be proper to observe that the offence under the NI Act cannot be equated with an offence made out by the provision of the IPC or any other offence. 32. The offence under Section 138 of the NI Act is in the nature of civil wrong but it has been strapped within the criminal liability. Section 138 of the NI Act requires some fundamental ingredients to be proved viz., (i) there is a legally enforceable debt; (ii) the cheque that was drawn, was so drawn in discharge in whole or in part of any debt or liability, which presupposes existence of legally enforceable debt; and (iii) the Cheque issued has returned due to insufficiency of fund. 33. To enforce the said Act, the scheme of Section 139 has been rephrased by the Amendment Act (Act 66 of 1988) which has come into effect from 01.04.1989. The re-phrased provision reads as under: “S. 139-presumption in favour of the holder- it shall be presumed, unless the contrary is proved that the holder of the cheque received the cheque of the nature referred to Section 138 for the discharge, in whole or in part, of any debt or other liability.” 34. Section 118 of the NI Act, which deals specially with the special rule of evidence under the NI Act, 1881 provides the rule of presumption as to ramification of the negotiable instrument. Section 118 of the NI Act, which deals specially with the special rule of evidence under the NI Act, 1881 provides the rule of presumption as to ramification of the negotiable instrument. It provides further that, until the contrary is proved, the following presumptions shall be made: (a) of consideration – that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance – that every accepted bill of exchange was accepted within the reasonable time after its date and before its maturity; (d) as to time of transfer – that every transfer of a negotiable instrument was made before its maturity; (e) As to order of indorsements - that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps – that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course – that the holder is a holder of a negotiable instrument in due course: Provided that, where instrument has been obtained for its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 35. The said rule of evidence carves out, not only distinction from the general principles of drawing presumption, but also makes the process certain. 36. The said rule of presumption is like any other rule of presumption under the Evidence Act. Notwithstanding the distinction, Section 139 but marks a rebuttable presumption in respect of discharge of any debt or liability or existence of any debt or liability. [See Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore reported in AIR 2010 SC 1402 : (2010) 3 SCC 83 ]. 37. Mr. Notwithstanding the distinction, Section 139 but marks a rebuttable presumption in respect of discharge of any debt or liability or existence of any debt or liability. [See Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore reported in AIR 2010 SC 1402 : (2010) 3 SCC 83 ]. 37. Mr. Bhattacharjee, learned counsel has made a hard endeavour to make out a case that the accused-respondent has rebutted the presumption that may emerge from Section 139 of the NI Act by placing the oral evidence in the record. The liability that the accused-respondent had in respect of the payment of the consideration price was discharged by payment in cash in two instalments, as stated. The first instalment to the extent of Rs.1,00,000/- was paid to PW2 which PW2 had acknowledged by issuing a receipt (Exbt.-A). Even, according to Mr. Bhattacharjee, he has admitted the payment of Rs.1,00,000/- in respect of the transaction related to the sale. That apart, the remainder of the consideration price was paid on 11.12.2012. Thus, he has asserted that the inference as drawn by the Magistrate for acquitting the accused-respondent is flawless and warrants no interference from this Court. 38. On appreciation of the evidence, it appears that the liability of payment of consideration price to the extent of Rs.9,00,000/- has been clearly admitted by the accused-respondent. Further he has admitted that he issued those cheques which were dishonoured when placed for encashment but according to him, the consideration price was paid by him in cash in two installments on two different dates and two different persons, viz., PW1 and PW2. 39. PW2 was examined. He has testified in the trial that he had received Rs.1,00,000/- but that was a part of the payment the accused respondent had promised to pay for the rental of the TATA JD earth cutter. The said amount of Rs.1,00,000/- was paid in advance as the part payment of the rental for the earth cutter. PW 2 has also admitted in the cross examination, that he issued the receipt (EXbt.-A) in favour of the accused respondent in acknowledgement of the said payment. 40. PW 2 has also stated that the accused-respondent did not turn up to take the TATA JD vehicle on rental from them. PW 2 categorically denied the claim of receiving the entire amount of Rs.9,00,000/- from the accused-respondent. 40. PW 2 has also stated that the accused-respondent did not turn up to take the TATA JD vehicle on rental from them. PW 2 categorically denied the claim of receiving the entire amount of Rs.9,00,000/- from the accused-respondent. It is really significant to note that the categorical statement as made that the amount of Rs.1,00,000/- was paid in advance for renting an earth cutter from Benu Roy, the complainant-appellant, was not even confronted in the cross-examination. Therefore, its consequence would entail as the foundational fact on drawing presumption in respect of discharge of the legal liability. 41. That apart, what is more interesting is that the accused-respondent has very emphatically pleaded that he had a good relation with the complainant-appellant and for that he did not insist for issuance of the money receipt after payment of Rs.8,00,000/- at his office from the complainant-appellant but he did not deny that he had issued two cheques amounting to Rs.9,00,000/- in favour of the complainant-appellant and a descriptive note reducing therein the purpose of issuing that cheque on 20.11.2012 (Exbt.-8). This is an additional document which is not ordinarily issued by any person. At least, it has completely debunked the defence case of informal transaction. It were an informal transaction, the said note would not have been there. Therefore, the transaction was, formal from its very inception. 42. The accused-respondent has sought to prove “the payment” by aid of two chance witnesses and both of them came to the accused-respondent for purpose of taking money. One has claimed to receive Rs.50,000/- and another has claimed to have Rs.2,00,000/-. It appears that they are very close to each other and they are too in a close business relation. The accused-respondent did not care to show on the date of payment from which source he got such huge amount. Whether he had collected from private sources or it was taken out from his account in any bank. Even, there is no whisper in this respect. 43. Now it turns to a situation where this Court is faced with two sets of evidence. One is the oral evidence and the other is the evidence completely based on documents relating to the transaction and of the bank process. 44. Even, there is no whisper in this respect. 43. Now it turns to a situation where this Court is faced with two sets of evidence. One is the oral evidence and the other is the evidence completely based on documents relating to the transaction and of the bank process. 44. Whether a prudent person can believe that keeping two live cheques in custody of someone, the same amount of money will be given to that person without taking back those cheques? If phrased differently, whether a prudent person would believe without obtaining receipt, a sum of Rs.8,00,000/- may be paid to someone where the transaction in the note (Exbt.-8)? There is no evidence that the accused-respondent having received the notice of demand, as stated, had reacted by revealing the said plea. 45. In this regard, the decision of the Apex Court in Hiten P Dalal (supra) appears very relevant, as the Apex court has provided in that report the details how such situation has to be weighed. 46. In Hiten P Dalal (supra) the Apex Court has distinguished or made distinction between the two types of presumption but also has delineated the nature of evidence required to rebut the two. In the case of discretionary presumption, the presumption drawn may be rebutted by the expression, “might reasonably be true and which is consistent with the innocence of the accused”. In case of statutory presumption, the burden on the accused is heavy and it cannot be held to be discharged merely by reason that explanation offered by the accused is reasonable and probable. It shall be shown that the explanation has its true and probably foundation. The words “unless the contrary is proved” which occur in this provision, make it clear that the presumption is required to be rebutted by proof not by mere explanation. So probably that a reasonable man would act on the supposition that the probable cause so offered did exist. Unless, explanation is founded on proof, the presumption created by that provision cannot be said to have rebutted. 47. Let us reproduce the passages as relevant in the context, from Hiten P Dalal (supra): “21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. 47. Let us reproduce the passages as relevant in the context, from Hiten P Dalal (supra): “21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that : “139. 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, of any debt or other liability." The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 22. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, AIR 1958 SC 61 , it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid at p 65, para 14). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, “after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”. Therefore, 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'.” 48. The two other decisions relied by the learned counsel for the accused respondent has not dealt with that aspect. Even, that proposition in Hiten P Dalal (supra) was not distinguished in any other subsequent decision. 49. In M.S. Narayana Menon (supra) the Apex Court has to some extent deliberated with the precedence in respect of the presumption in general but while dealing with the presumption specially drawn on the basis of the provisions of NI Act, the Apex Court has clearly relied on Hiten P Dalal (supra). 50. John P Abhram (Supra) is however, very remote to the context and as such no reference is required to be made. 51. Mr. Bhattacharjee has raised another additional ground at the fag end of his submission that if two views are possible, the view that favours the accused shall be accepted by the Court. This is an evolved principle of jurisprudence, but here is not a case of two sets of evidence. It is a question of comparative probative value of evidence. Hence, this Court is not persuaded by that plea. 52. The evidence coming from the chance witness is required to be assessed with extra caution. The entire circumstance has to be considered to believe the presence acceptable. Thereafter, with high degree of caution their statement has to be sifted. If from the circumstance, it appears that their presence is fictional, the court has every right to discard the evidence of the chance witness. 53. The entire circumstance has to be considered to believe the presence acceptable. Thereafter, with high degree of caution their statement has to be sifted. If from the circumstance, it appears that their presence is fictional, the court has every right to discard the evidence of the chance witness. 53. According to this Court, the chance witnesses, viz. DWs 2&3 cannot be relied inasmuch as the fiction that has been created by the accused vis-à-vis the transaction so well document that no prudent person can go by such fiction. The complainant-appellant has proved both the fundamental ingredients as stated above viz the legal liability and two cheques were issued in due course and in discharge of that legal liability. On deposit, those were dishonoured for insufficiency of fund. 54. The attempt to rebut the presumption, amenable to be drawn out what the complainant-appellant has proved is the foundation fact, is apparently very robust, but if the entire transaction is scrutinized with resilience it would surface that there is no reason that a prudent person should believe the opposite. 55. That is how the Apex Court in Hiten P. Dalal (supra) has distinguished between two situations. It is not general presumption under Section 114 of the Evidence Act, it is a presumption under Section 139 read with rule of evidence as provided under Section 118 of the NI Act. The presumption has to be very direct and of such nature that the fact that has been laid has to be trusted by a prudent person. It must be supported by reliable materials. A reasonable man would act on the supposition that it exists. Unless, the explanation in order to rebut is supported by proof the presumption created by the statute cannot be said to have rebutted. 56. This Court has also noticed that the accused-respondent has acted sometimes in a manner which cannot be stated to be bona fide. Even in the Court, he has stated that he did not receive the notice but the record from the postal department has squarely established that notice was duly served. Even he did not make any attempt to bring someone from the postal department to demonstrate that the communication dated 23.02.2013 (Exhibit-B) is not based on delivery of the registered article. Even there is no infirmity in the admission of the communication received from the Postal Department. Even he did not make any attempt to bring someone from the postal department to demonstrate that the communication dated 23.02.2013 (Exhibit-B) is not based on delivery of the registered article. Even there is no infirmity in the admission of the communication received from the Postal Department. As such, this Court does not have any other alternative but to observe that the accused-respondent has grossly failed to rebut the presumption under Section 139 read with Section 138 of the NI Act. Therefore, this Court is persuaded to interfere with the judgment and order of acquittal dated 27.05.2016 delivered in case No. NI 19/2013. From the evaluation as made above, the accused-respondent is liable to be convicted and is accordingly convicted under Section 138 of the NI Act. 57. As consequence of the conviction, the accused respondent is sentenced to pay fine of Rs.10,00,000/-. In default of payment of fine, the accused-respondent shall suffer simple imprisonment for two years. That amount shall be paid in the court of the Magistrate (the Addl. CJM, West Tripura, Agartala) within two months from the date when the copy of this order shall reach to the court of the Addl. CJM, West Tripura, Agartala. 58. In the result, this appeal stands allowed. Send down the LCRs forthwith.