JUDGMENT : 1. Heard Mr. A Chamuah, learned counsel for the appellant. None appears on behalf of the respondent No. 1 (private respondent) despite service of notice and the learned State-respondent is a formal party. 2. The appellant as a complainant lodged the complaint u/s 138 of NI Act before the learned Trial Court of learned Judicial Magistrate 1st Class, Kamrup (M) for dishonour of cheque that was issued by the respondent No. 1 Sajid Ali. The case was came for trial before the Court of learned JMFC, Kmarup (M) vide CR Case No. 146c/ 2015. So far as the case of the complainant is that the complainant had a good business dealings with the accused. It is alleged that the accused/respondent in relation to the business dealings, issued a cheque No. 396544 dated 17.10.2014 for an amount of Rs. 90,000/- against his liability. The complainant accordingly submitted the said cheque before the bank concerned but on two occasions, the same was returned dishonoured for insufficient of fund. Accordingly, the complainant served a legal notice upon the accused/respondent demanding the payment of the cheque amount but there was no response to such notice and hence he filed the complaint case as above. 3. The accused/respondent stood the trial and denied the charge u/s 138 of NI Act that was explained to him. 4. In course of trial, the complainant as well as the accused examined himself as witnesses in support of their claim. It appears from his statement u/s 313 Cr.P.C., that accused admitted about taking of loan of Rs. 80,000/- and according to him he also returned an amount of Rs. 60,000/- as against such loan. 5. The learned Trial Court framed the following points for determination: (a) Whether the accused issued cheque No. 396544 dated 07.10.2014 (Ext-1) in favour of the complainant for the discharge of his legally enforceable debt or liability? (b) Whether Ext-1 was dishonoured due to insufficiency of funds? (c) Whether the accused received the demand notice issued by the complainant regarding the dishonour of the cheque? (d) Whether the accused failed to repay the cheque amount to the complainant within the stipulated period? (e) Whether the accused has committed the offence u/s 138 of the Act? 6. (b) Whether Ext-1 was dishonoured due to insufficiency of funds? (c) Whether the accused received the demand notice issued by the complainant regarding the dishonour of the cheque? (d) Whether the accused failed to repay the cheque amount to the complainant within the stipulated period? (e) Whether the accused has committed the offence u/s 138 of the Act? 6. After appreciation of the evidence and the document on record, the learned Trial Court has discussed and decided all the points in favour of the petitioner but the last point for determination was decided in negative by holding that prosecution has failed to prove that the accused that cheque was issued in discharge of legal liability. In holding, so the learned Trial Court has relied upon the evidence of the accused/respondent wherein stated that he has taken loan of Rs. 80,000/- as against which he has already paid Rs. 60,000/-. In view of the evidence of the defence, the Court found and held that the prosecution has failed to prove the existence of legal and enforceable debt of liability of the accused towards the complainant and hence failed to prove the offence u/s 138 of NI Act and acquitted the accused person. 7. Challenging the aforesaid finding and order, the present appeal has been preferred after obtaining the necessary leave. 8. I have heard the argument of learned counsel for the appellant whereas none appears for & on behalf of respondent No. 1/accused despite service of notice. I have considered the evidence on record and let us appreciate the evidence of both the parties. 9. The complainant/appellant as PW-1 in his evidence has stated all about the facts that the accused took loan of Rs. 90,000/- as against the same and he also issued the cheque vide Ext-1 towards the liability and on being deposited the cheque was dishonoured for which he issued legal notice demanding payment of the cheque amount. As against the said evidence and the complainant, the accused/respondent examined himself as DW-1 in his evidence, he has admitted that he took the loan of Rs. 80,000/- from the complainant and at the time of taking loan he signed the blank cheque and however, he has paid Rs. 60,000/- as against the said loan and he is still ready to give the rest of the amount to the complainant but the complainant never came back. 80,000/- from the complainant and at the time of taking loan he signed the blank cheque and however, he has paid Rs. 60,000/- as against the said loan and he is still ready to give the rest of the amount to the complainant but the complainant never came back. In course of evidence, the accused/respondent has produced one documents Ext-A, which according to the complainant is not relates to the accused persons and it has nothing to do with the complainant as well as the accused persons, but the learned Trial Court has accepted the same as if it is a document related to the accused persons, which also needs proper appreciation by the learned Trial Court. 10. Obviously such an evidence of the accused/respondent is a clear admission of his liability towards the complainant, while he admitted about taking of loan and he is also ready to pay the same. It is to be noted that the accused/respondent has deliberately stated that he took a loan of Rs. 80,000/- instead of Rs. 90,000/- as has been claimed by the complainant, but the same cannot be accepted as he admitted his signature in the cheque which was issued as against an amount of Rs. 90,000/-. That apart, he has stated about re-payment of Rs. 60,000/- against the liability but same was not proved in proper manner, for which it cannot be stated to be proved. Such a matter of payment of money is to be proved in strict manner instead of oral or one line evidence of accused himself. The learned Trial court failed to appreciate the evidence of DW-1 that it was a clear admission of legal liability on the part of the accused/respondent towards the complainant. Only because the complainant failed to cross-examine the said witnesses, the Court took an adverse opinion/conclusion that there was no legal liability on the part of the accused. It is settled principle of law that the things admitted need not be proved. 11. During the Course of trial, the accused/respondent was also examined u/s 313 of Cr.P.C. wherein he has admitted all the factual position of the matter that he has a business relationship with the complainant, he has taken loan of Rs. 80,000/- from the complainant and issued cheque to him. 11. During the Course of trial, the accused/respondent was also examined u/s 313 of Cr.P.C. wherein he has admitted all the factual position of the matter that he has a business relationship with the complainant, he has taken loan of Rs. 80,000/- from the complainant and issued cheque to him. He has also admitted about the receipt of legal notice issued by the complainant demanding the aforesaid money but he did not reply the same. It was his contention that he has paid Rs. 60,000/- to the complainant already against the said loan but same was not proved in due manner and in view of the matter. It can be held that he has failed to rebut the presumption u/s 139 of the Act in due manner. Accordingly, taking of plea is not enough, unless it is substantiated in due manner. Plea of denial is a regular feature under each and every criminal trial. Once accused choose to challenge the case of the other side then he has to rebut the presumption under the statute, he has to produce the requisite evidence to rebut such presumption. 12. As has been discussed above, although the accused/respondent has accepted about the factum of taking loan but has failed to prove the return of such amount to the complainant and in the circumstances, it can necessarily be held that he has failed to rebut the presumption under the law. The Hon’ble Apex Court reported in 2018 0 AIR (SC) 3173; 2018 0 Supreme (SC) 678 Kishan Rao Vs. Shankargouda, it has been held that simply taking of plea by the accused/respondent would not be enough to rebut the statutory presumption unless substantiated by requisite evidence. Now in the instant case as has been discussed above, it is to be noted that the learned Trial Court has although decided all the points in the favour of the complainant but has erred in appreciating the final aspect of the said cheque issued in discharge of legal liability. In the circumstances, it is to be noted that the evidence on record need proper appreciation to arrive at a just conclusion and the decision rendered by the learned Trial Court is not as per law. 13. In the circumstances, it is to be noted that the evidence on record need proper appreciation to arrive at a just conclusion and the decision rendered by the learned Trial Court is not as per law. 13. Having regard to the submission so made and the matters on record, the impugned order and judgment so passed by the learned Trial Court dated 26.02.2015 in CR Case No. 146c/2015 is hereby quashed and set aside and the matter is remanded to the learned Trial Court with a direction to decide the matter afresh after proper appreciation of evidence on record by giving an opportunity of being heard by the learned counsel for both the parties in accordance with law without being influenced by the observation of this Court. 14. The learned Trial Court will also give the opportunity to the appellant/complainant to cross-examine the defence witnesses in the course of trial for just decision of the case. Petitioner is directed to appear before the learned Trial Court on or before 06.02.2019 and the learned Trial court will ensure the presence of both the parties and dispose the case within a period of 2 (two) months thereafter. Return the LCR.