JUDGMENT : B.A. Patil, J. This appeal has been preferred by the appellant-complainant being aggrieved by the judgment and order of acquittal passed by the learned Civil Judge (Senior Division) and CJM, Gadag in C.C.No.948/2007 dated 04.12.2010 where under the complaint filed under Section 138 of Negotiable Instrument Act, 1881 (herein after called as 'the Act') was came to be dismissed by acquitting the accused. 2. The brief case of the complainant before the Court below is that he is the owner of the JCB machine. He used to give the said JCB machine on hire basis. Accused-respondent used the said JCB of the complainant on hire basis and after work is completed, the accused was due to a sum of Rs.2,78,000/- to the complainant. When accused asked for payment of the said amount, the accused issued two post dated cheques bearing No.077639 for Rs.1,00,000/- dated 15.02.2005 and 077640 for Rs.1,78,000/- dated 20.02.2005 drawn on Corporation Bank, Branch Gadag in favour of the complainant. On request by the accused, the said cheques were presented for encashment through Reddy Sahakara Bank Niyamitha, Gadag and both the cheques were presented on 14.07.2005 and the same were returned with a memo on the said date with an endorsement 'funds insufficient'. The said fact was intimated by his banker. Thereafter, complainant got issued legal notice on 26.07.2005. The notice was served on the accused on 06.08.2005. Accused neither replied to the said notice nor paid cheque amount till today. Thus complainant constrained to file complaint. On the basis of complaint a case came to be registered under Section 138 of the Act. 3. Court below took the cognizance and secured the presence of the accused. Thereafter, complainant examined PWs 1 to 3 and got marked Ex.P1 to P16 and after the evidence of DW1, the impugned judgment came to be passed acquitting the accused. Challenging the same complainant is before this Court. 4. It is the submission of the learned counsel for the complainant-appellant that the accused-respondent has engaged the services of JCB machine and the amount due was to the extent of Rs.2,78,000/- and he has issued the cheques and the said cheques have been dishonoured and thereafter the said amount has not been paid and all the ingredients have been satisfied. It is the submission of the learned counsel for the complainant-appellant that the accused-respondent has engaged the services of JCB machine and the amount due was to the extent of Rs.2,78,000/- and he has issued the cheques and the said cheques have been dishonoured and thereafter the said amount has not been paid and all the ingredients have been satisfied. It is his further submission that the Court below without considering the fact that the respondent-accused has admitted the signature on the cheques and he has led evidence but only on vague premises that the complaint was came to be dismissed. When once respondent admits his signature on the cheques, the Court is duty bound to draw the presumption and the said presumption has to be rebutted with preponderance of probabilities by the accused. But the said presumption remained as presumption without there being any rebuttal evidence. But the Court below without considering the fact has wrongly dismissed the complaint. It is his further submission that there is no proper appreciation of the facts and circumstances of the case and as such, there is a good case for the complainant to allow the complaint and convict the accused to the alleged offence. 5. Per contra, the leaned counsel for the respondent vehemently argued and contended that initial burden is there upon the complainant to prove that there is a legally recoverable debt and in pursuance of the same, the accused has issued a cheque and if at all any presumption has to be drawn, the same has to be drawn after the initial proof. In order to substantiate the said fact the complainant has given a JCB machine on hire basis to the accused not even a peace of evidence has been produced in this behalf. It is his further contention that even during the course of cross examination of PW1, he has shown his ignorance about the vehicle number and other things and has only stated that about five months prior to giving of the evidence, the same has disposed. That itself shows that no such services were availed by the accused and that there is no legally recoverable debt. Under the said facts and circumstances, the Court below has rightly come to the conclusion that the complainant has not proved his case and ultimately dismissed the petition. 6. That itself shows that no such services were availed by the accused and that there is no legally recoverable debt. Under the said facts and circumstances, the Court below has rightly come to the conclusion that the complainant has not proved his case and ultimately dismissed the petition. 6. Further, he submitted that though under Section 118 and 139 of Negotiable Instrument Act, when once the accused admitted the signature on the cheque, a presumption shall be drawn that the cheque was issued for discharge of any debt or other liability. Even then, before drawing the statutory presumption, the burden is there on the complainant to prove the existence of facts which is to be present before presumption can be drawn. When no documents have been produced including any note book or other things for having availed the services by the accused, then under such circumstances, presumption cannot be drawn in this behalf. In order to substantiate his said contention, he relied upon the decision in the case of BASALINGAPPA VERSUS MUDIBASAPPA, 2019 CDJ 471 SC. It is his further contention that the complainant's relative was a MLA and accused was working in Land Army and in order to cancel the transfer made to the accused, the said cheques have been obtained by the complainant and the same have been misused. On these grounds, he prays to dismiss the appeal as devoid of merits. 7. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records. 8. It is the specific case of the complainant that the accused has hired the JCB belonging to the complainant and thereafter he has not paid the amount due and he has issued two cheques Ex.P1 and P2. The Court below has gone on wrong side and has disclosed the fact that the complainant has not produced any script of paper to show that he was the owner of the JCB machine and no documents have been produced to establish that the complainant has owned the said JCB machine. It is not the ownership and other things of the vehicle which is intended to be produced in this behalf, even, it is nobodies case. It is not the ownership and other things of the vehicle which is intended to be produced in this behalf, even, it is nobodies case. If really, the services of JCB has not been utilized by the accused and he has issued the cheque for the purpose of getting his transfer canceled, for the reasons best known to him when a legal notice was came to be issued immediately after the cheque was bounced and returned with the shara 'insufficient funds', he could have given a proper reply. No reply has been given in this behalf. It is all considered to be an after taught and only in order to cheat the complainant, such defence has been taken. Even, nowhere he has denied the fact that he has not availed the services of the JCB. When he has not denied the availing of the services of JCB, then, under such circumstances, the fact itself is said to have been admitted and it is well settled proposition of law that admitted facts need not be proved. This aspect has not been properly considered and appreciated by the Court below while considering the facts of the case on hand. Even, as could be seen from the records, the accused has issued the cheque pertaining to the Karnataka Land Army and the said account is also pertaining to M/s Karnataka Land Army. He has issued the cheque to discharge the liability of Rs.2,78,000/-. As on the date when he issued the cheque to the accused, he was working as Assistant Director in Karnataka Land Army for having held the highest post and he is the person who is the operator of the accounts and authroized to sign has issued the said cheques, knowing fully well, if such a cheque has been issued that itself clearly goes to show that since from beginning, accused is having a criminal mind and he was intended to cheat the complainant, though he has availed the services of the complainant by using his JCB. Even, as could be seen from the cheques Ex.P1 and P2, there is no seal or any other material to come to the conclusion that the said cheques are pertaining to M/s Karnataka Land Army. Even, as could be seen from the cheques Ex.P1 and P2, there is no seal or any other material to come to the conclusion that the said cheques are pertaining to M/s Karnataka Land Army. The accused-petitioner was the authorized person to sign and he has issued the cheques in discharge of the said debt and liability even though he has not disputed the signature on the Ex.P1 and Ex.P2. When that being the case, then, under such circumstances only because that no script or papers have been produced to show that the complainant is not having any vehicle, on that ground, complaint cannot be dismissed. 9. Under the peculiar facts and circumstances and when he has not denied the availing of services of JCB in the cross examination of PW1-complainant, then, it cannot be held that the complainant has not established his case in the initial stage for existence of the facts. When once fact has been established then, under such circumstances, a presumption has to be drawn as contemplated under Section 118 and 139 of the Act and thereafter the burden shifts upon the accused-respondent to rebut the same on preponderance of probabilities. It is a specific contention of the accused-respondent that he was transferred to Gadag and the relative of the complainant is an MLA. In order to get the transfer cancelled, he has issued the cheques. But, in order to substantiate the said fact, except by examining himself, no other evidence has been produced. 10. Be that as it may. Even presuming that the respondent-accused has issued the cheque for cancellation of the transfer through his relative, no person will issue a cheque belonging to M/s Karnataka Land Army, which is a public concern. If it is intended to be given for cancellation of the transfer, then that itself amounts to an offence under the law. Though, he was not authorized to use those cheques for any other purpose other then purpose for which issued. Then, it is considered to be a serious act or misconduct on the part of the respondent-accused. When once the said fact has been brought to the notice of the Court, action has to be taken against respondent-accused, I feel that an action has to be initiated from concerned office in this behalf against the respondent-accused by filing a separate criminal case as against him by the concerned Department. When once the said fact has been brought to the notice of the Court, action has to be taken against respondent-accused, I feel that an action has to be initiated from concerned office in this behalf against the respondent-accused by filing a separate criminal case as against him by the concerned Department. In that light, a copy of this judgment may be sent to M/s Karnataka Land Army to take suitable action in accordance with law as against the accused-respondent. 11. After going through all the material which has been produced, it clearly goes to show that the said accused has availed the services from the complainant by hiring the JCB machine and in his individual capacity, he has issued the cheques Ex.P1 and P2 and he has also not rebutted the said presumption which has been drawn as against him. When once presumption drawn, if it is not rebutted then, the only alternative which is left open is that the case of the complainant has been proved and accused is liable to be convicted for the offences under Section 138 of the Act. All these legal consequences and the legal aspects have not been properly considered and appreciated by the Court below and it has been swayed only by fact that no documents have been produced. In that light, complainant has made out a case to allow the appeal and set aside the impugned order. 12. I have heard the learned counsel for the respondent-accused regarding the sentence. As per Section 138 of the Act, accused is liable to both conviction as well as fine to the tune of double the amount of the cheques. In that light the accused is convicted and sentenced to undergo imprisonment for a period of two years and with a fine of Rs.6,00,000/-, in default, he has to undergo imprisonment for a period of six months. Out of the said fine amount, an amount of Rs.2,78,000/- is ordered to be paid to the complainant on proper identification and acknowledgement. 13. Accordingly, appeal is allowed. Judgment and order of acquittal passed by the learned Civil Judge (Senior Division) and CJM, Gadag in C.C.No.948/2007 dated 04.12.2010 where under the complaint filed under Section 138 of Negotiable Instrument Act, 1881 is set aside and accused is convicted.