JUDGMENT S M Modak, J. - Normally Courts dealing with the dishonour of cheque cases come across a defence of denying the liability, non- compliance of the various time period prescribed in that. In the appeal before this Court, the accused-respondent (apart from taking usual defences) has taken a special defence about issuing the cheque in voluntarily. Accused have pleaded that accused No.3 (Director of accused No.1 - company) was taken to the factory of Milkiyatsingh Saggu on 15/05/2003 and his signature on the cheque in issue was taken by applying force. 2. Complainant - company and the respondent No.1 - company both are involved in similar type of business of dealing in steel and other material. The complainant was a trader, whereas accused No.1 - company is a manufacturer. The issuance of a cheque has arisen out of the transaction of sale of the steel material of different kinds by the complainant to accused No.1 - company. There are two instances of sale dated 13/05/2003 and 14/05/2003. The value of this sale amounts to Rs.5.00 lakhs. The cheque in question was issued on Punjab National Bank, Gandhibagh Branch, Nagpur for Rs.5.00 lakhs. It was dated 15/05/2003. 3. The complainant on one hand contends about voluntarily issuance of that cheque for genuine transaction of sale of steel material. Whereas, the accused contends about issuance of a cheque not freely, but by applying the force. Accused Nos.2 and 3 are the Directors of accused No.1 - company. Accused No.3 signed the cheque. Accused No.2 expired after filing of a complaint and earlier to its disposal. On one hand, complainant contends about dishonour of cheque due to insufficient funds, issuance of a demand notice dated 21/06/2003 and its receipt by direct and by constructing way and consequent failure to pay the amount of the cheque. Whereas, the accused contends about issuance of notice to the complainant on 20/05/2003 lodging of a complaint with Lakadganj Police Station, Nagpur. 4. The accused have also tried to explain the background in which the cheque in question was issued. The accused was having some financial dispute with one Milkiyatsingh Saggu. Under the guise of settling that dispute, the complainant took accused No.3 to the factory of Milkiyatsingh on 15/05/2003. At that place, by threatening the accused No.3 with the help of Pistol, accused No.3 was forced to sign on certain documents. The accused was having some financial dispute with one Milkiyatsingh Saggu. Under the guise of settling that dispute, the complainant took accused No.3 to the factory of Milkiyatsingh on 15/05/2003. At that place, by threatening the accused No.3 with the help of Pistol, accused No.3 was forced to sign on certain documents. It includes blank stamp paper, blank agreement and blank cheque in question. EVIDENCE and FINDINGS OF TRIAL COURT 5. Both the parties adduced their evidence before the trial Court. On behalf of the complainant, one Girdharilal Sohanlal Agrawal gave evidence. Whereas, accused has chosen to examine one Bhaudas Zaduji Raut, a Special Assistant from Punjab National Bank (in which the accused company was having account). As per the rule of the company, signature of the Chairman and Director are required. Whereas, the cheque in question contained only the signature of accused No.3. For proving this fact, witness Bhaudas Raut was examined. 6. After hearing both the sides, the learned trial Court find favour with the accused. The trial Court found shortcomings in the evidence of the complainant and it was concluded that the accused have rebutted the presumption required to be drawn under Section 139 of the Negotiable Instruments Act (hereinafter referred to as the "N.I. Act" for short). ARGUMENTS 7. Learned Advocate Shri Sable argued on behalf of the complainant, whereas the learned Advocate Shri Dixit argued on behalf of the accused. The learned A.P.P. has supported the judgment of the trial Court. They have helped this Court in going through the record. I got an opportunity to go through the ratio laid down in some of the citations relied upon by both the sides. This Court feels that the appeal needs to be decided on the following issues :- I. Whether the presumption in favour of the complainant can be drawn under Section 139 of the Negotiable Instruments Act? II. Whether the accused was successful in rebutting the presumption required to be drawn under Section 139 of the Negotiable Instruments Act? III. Whether the trial Court was correct in believing the defence of the accused, particularly, when they have not produced the documents (referred by them during cross-examination) and which are though admitted by the complainant during crossexamination? IV. In what manner, the accused needs to be dealt with, if this Court finds proof of commission of the offence? INTERFERENCE BY THE APPELLATE COURT 8. IV. In what manner, the accused needs to be dealt with, if this Court finds proof of commission of the offence? INTERFERENCE BY THE APPELLATE COURT 8. It is true that during pendency of the trial, the presumption of innocence is in operation. It get confirmed when there is a verdict of acquittal in favour of the accused. It is said that the appellate Court should not interfere in the judgment of acquittal normally. It is also true that the offences of the Indian Penal Code and the offences under the Negotiable Instruments Act stand on the different footing. In a first category, the accused generally takes a defence of denial. Rarely, these cases involved documentary evidence. Whereas, in a latter category, the cases mainly rest on a documentary evidence. So, the scope of interference by the appellate Court is more (if the evidence suggests otherwise) than the scope for interference in the Indian Penal Code offences. PRESUMPTION UNDER THE NEGOTIABLE INSTRUMENTS ACT 9. Sections 118 and 139 of the N.I. Act deal with those issues. The complainant relies upon the presumption under Section 139 of the N.I. Act. Whereas, the accused has taken the help of the proviso to Section 118(g) of the N.I. Act pertaining to burden on holder in due course. It is true that Section 139 of the N.I. Act says about the presumption in favour of a holder, which was incorporated in the N.I. Act by way of Chapter XVII. This presumption was not there earlier to 1989. When cheque has been received by the holder, there is always a presumption that it has been issued for discharge of debt or liability. The presumption is useful to holder of the cheque. 10. Section 8 of the N.I. Act gives meaning of the word "holder". There are two essential things for person to become a holder i.e. the person, who is entitled to the possession of the cheque and the person who is entitled to recover the amount. If both are satisfied, he becomes the holder of the cheque. However, the presumption in favour of holder under Section 139 of the N.I. Act is not a conclusive proof. It is a rebuttable presumption. The drawer of the cheque is entitled to prove that cheque has not been issued for discharge of debt or liability. 11. If both are satisfied, he becomes the holder of the cheque. However, the presumption in favour of holder under Section 139 of the N.I. Act is not a conclusive proof. It is a rebuttable presumption. The drawer of the cheque is entitled to prove that cheque has not been issued for discharge of debt or liability. 11. Now, the question still arises, whether in this case this presumption is applicable or whether the variance in the presumption in favour of a holder in due course as contemplated in proviso to clause (g) of Section 118 of the N.I. Act will be applicable. Mere because a new presumption has been incorporated by the legislators by way of Section 139 of the N.I. Act, it does not mean that other original presumptions in the N.I. Act will have to be overlooked. All the presumptions will have to be considered together. PRESUMPTION IN FAVOUR OF HOLDER IN DUE COURSE 12. Section 118 lays down various presumptions. They are also rebuttable presumptions. Clause (g) says that holder of a negotiable instrument is always a holder in due course. There is a difference in between the holder as defined under Section 8 and holder in due course as defined in Section 5 of the said Act. All holders need not always be holder in due course but every holder in due course is always a holder. If the cheque is payable to bearer and if the cheque is payable to order, who are holders in due course is laid down in Section 9 of the said Act. In cases before us, the cheque in question was crossed and account payee cheque. It means, it was payable to order. In that contingency, two persons are described as the holders in due course, one category is payee and another category is indorsee. We are not dealing the case of indorsement. So the payee is the holder in due course. In the cheque, if name of the person is mentioned, who is entitled to recover the amount is called as a payee under Section 7 of the N.I. Act. FACTS 13. In this case, the name of the complainant is mentioned in the cheque. So, he becomes the payee and holder in due course. Whether the cheque was issued voluntarily or not will be decided later on. PROVISO 14. FACTS 13. In this case, the name of the complainant is mentioned in the cheque. So, he becomes the payee and holder in due course. Whether the cheque was issued voluntarily or not will be decided later on. PROVISO 14. Proviso to clause (g) lays down a rule, wherein the initial presumption in favour of the holder in due course is not applicable. Following are the ingredients of the proviso :- i. Instrument has been obtained from lawful owner or from lawful custody by means of (a) an offence (b) by fraud. ii. Instrument has been obtained from the maker or acceptor by means of (a) an offence (b) fraud or (c) unlawful consideration. So, if one of the categories is shown then the holder in due course is not entitled to request the Court to draw presumption that he is a holder in due course. In other words, he is also not entitled to request the Court that cheque has been received by him for discharge of debt or liability. FACTS 15. The next issue arises at what point of time the drawer can deny the holder from claiming the benefit of initial presumption as per clause (g) of Section 118 of the N.I. Act. I think, in this case, the complainant cannot take the benefit of initial presumption under Section 118(g) of the N.I. Act. The reason is , there is a dispute in between the parties about voluntary or involuntary issuance of the cheque. There are two ingredients for a person to become holder under Section 8 of the N.I. Act. Entitlement in his own name to possess and entitlement to recover are the two ingredients. So, entitlement is important. It means receipt of cheque. A person may receive the cheque in two ways, lawfully as well as unlawfully. When law assists a person in relieving him to prove certain things (by way of presumption), law always expect the legal mode. So when there is dispute about manner of receipt of cheque by the complainant (legally or illegally), initial presumption under Section 118(g) will not be useful. PRESUMPTION IN FAVOUR OF HOLDER 16. Still, there is a different angle for looking to the issue. The material wording of Section 139 says, "the holder of a cheque received the cheque". Receiving the cheque is important. Law presupposes the receipt of the cheque must be lawful. PRESUMPTION IN FAVOUR OF HOLDER 16. Still, there is a different angle for looking to the issue. The material wording of Section 139 says, "the holder of a cheque received the cheque". Receiving the cheque is important. Law presupposes the receipt of the cheque must be lawful. If the drawer comes with a grievance that he has lost the cheque and legitimate steps have been taken and on this background, if the payee/complainant received the cheque (without supported by any consideration), it cannot be said that holder received the cheque legitimately. Here the accused company has pleaded about delivery of the cheque to the complainant not voluntarily but because of threatening by raising pistol. Whether this thing has been proved or not will be considered later on. But, it can certainly be said that there is no consensus amongst the parties that holder received the cheque legitimately. The complainant cannot take the benefit of initial presumption laid down in Section 139 of the N.I. Act. JUDGMENTS 17. Before scrutinizing the evidence at this juncture, it will be material to consider the judgments relied upon by both the sides, what is the extent of a burden on accused to rebut the presumption has been laid down in the case of Mohammad Murtuza Mohamad Yusuf vs. Gulam Nabi Abdul Rehman and Anr., (2011) 4 Crimes(HC) 362 (Bom.) . The cheque was issued for repayment of the hand-loan. In the facts and circumstances of the case, it was held that mere denial of the existence of debt and passing of consideration is not sufficient to rebut the presumption. The test of proof beyond reasonable doubt is certainly not applicable. On facts, the High Court held that accused could not rebut the presumption. 18. Accused can succeed in rebutting the presumption, if he can make his defence probable. The test to be applied is that of preponderance of probability. There was a variance in between the cross-examination and the answers given in 313 statement. So, on facts, it was held that accused could not rebut the presumption. This Court was pleased to convict the accused in the case of Datta Sonaji Doiphode vs. Deepak Walmik Meshram, (2018) 2 Crimes(HC) 6 (Bom.) . 19. The judgments relied upon by the complainant is in the case of Lalji s/o Bansanarayan Choubey vs. Jiyalal Chavan and Anr., (2009) AllMR(Cri) 483 . This Court was pleased to convict the accused in the case of Datta Sonaji Doiphode vs. Deepak Walmik Meshram, (2018) 2 Crimes(HC) 6 (Bom.) . 19. The judgments relied upon by the complainant is in the case of Lalji s/o Bansanarayan Choubey vs. Jiyalal Chavan and Anr., (2009) AllMR(Cri) 483 . Once the fine amount is recovered, how much has to be appropriated, has been laid down in the said judgment. Whereas, on the point of standard and discharging of a burden on accused, how it is to be discharged, the judgment in the case of M/s. Laxmi Dyechem vs. State of Gujarat and others, (2014) AllMR(Cri) 721 was relied upon. Again the test of preponderance of probability was reiterated. Such burden can be discharged even by pointing out the lacunae in the material produced by the complainant. If probable defence is made out, it is said that accused has successfully discharged his burden. The Hon''ble Supreme Court in the case of Basalingappa vs. Mudibasappa, (2019) AIR SC 1983 again reiterated the standard of burden, the manner of discharge of a burden on the accused in the case under the N.I. Act. In that case, the signatures on the cheque have not be disputed (Para 6 and 7 to be read). 20. The principles laid down in above cases can be considered while appreciating the evidence adduced before the trial Court. For the above discussions, the evidence needs to be looked into. It will be material to consider the observations laid down in the judgments relied upon by both the sides. EVIDENCE ADDUCED BEFORE THE TRIAL COURT AND ITS APPRECIATION 21. About the present transaction, the complainantcompany came with the case of sale of two types of material on 13/05/2003 and on 14/05/2003. The bills and challans are filed. The details are as follows : Particulars Date Weight/Amount Exhibit Nos. Delivery Challan 13/05/2003 19.340 MT 18 Bill 13/05/2003 Rs.2,41,745/- 20 Delivery Challan 14/05/2003 8.600 MT 19 Bill 14/05/2003 Rs.2,58,255/- 21 DEBT/LIABILITY 22. There are signatures on delivery challans of accused No.3. They have been denied by him. The trial Court found certain defects in these bills and challans. They are as follows:- I. There is a difference in between the signatures appearing on delivery challans at Exh.18 and Exh.19 on one hand and admitted signature of accused No.3 on the cheque at Exh.22 on the other hand. II. They have been denied by him. The trial Court found certain defects in these bills and challans. They are as follows:- I. There is a difference in between the signatures appearing on delivery challans at Exh.18 and Exh.19 on one hand and admitted signature of accused No.3 on the cheque at Exh.22 on the other hand. II. Signatures appearing on Vakalatnama, Bail Bond, certain interim applications on one hand and the disputed signatures on delivery challans at Exh.18 and Exh.19 differ. III. There is overwriting in the rate and amount mentioned on the bill at Exh.20, dated 13/05/2003. IV. No justification for carrying out overwriting and the basis for reducing the rate from Rs.12,500/- to Rs.12,019/- per metric tonne. V. Date was changed from 13/05/2003 to 14/05/2003 on the bill at Exh.21. VI. Loading charges were added in the bill at Exh.21, but they were not added in the bill at Exh.20. VII. Bombay Sales Tax charges at 4% were added in the bills at Exh.20 and Exh.21, but during cross-examination, the complainant''s witness admits that entry of sale in Excise Register is not taken (he offered explanation that it is not applicable to them). VIII. Weight receipt is issued only when goods are weighed on weighbridge. IX. Complainant''s witness clarified that if the goods are weighed manually, no weight receipt is to be issued. X. Quantity of the material sold vide two bills is around 28 tonnes. XI. The Court observed difficulty to weigh such huge quantity manually. XII. Stock Register for goods purchased and sold is maintained, but witness has not produced the same. XIII. There were earlier transactions with the accused, but the complainant''s witness answers that they are out of record. XIV. No account in the Register is maintained for earlier transactions with the accused as answered by the witness. CONCLUSION 23. For the above findings, the trial Court held that transaction of sale of the material is not proved by the complainant. I have also gone through the examination-in-chief and cross-examination of the complainant''s witness. The accused has opened out his defence while cross-examining the complainant''s witness. On this background, to show genuineness of the said transaction, he could have examined any witness or produce any documentary evidence. Unfortunately, it has not happened. If goods are sold and delivered through truck, lots of documentary evidence comes into existence in a usual course. The accused has opened out his defence while cross-examining the complainant''s witness. On this background, to show genuineness of the said transaction, he could have examined any witness or produce any documentary evidence. Unfortunately, it has not happened. If goods are sold and delivered through truck, lots of documentary evidence comes into existence in a usual course. So also various persons are involved in the said process. So, why complainant has not examined and produced any documentary evidence. Any explanation has not been offered before the trial Court and before this Court also. Such kind of evidence is not important when the accused pleads that signature on the cheque was taken by applying force. This is not the defence which usually the Court come across. So, I find no reason to discard with the inferences drawn by the trial Court as reproduced above. PROBABILITY OF THE DEFENCE OF THE ACCUSED 24. The trial Court accepted the defence of the accused as probable. The law on the point of discharge of burden by the accused is reiterated in the judgments referred above. They are binding on all of us. While accepting the defence as probable, the trial Court has considered certain factors. So also, I find certain admissions given by the complainant''s witness during crossexamination. They are as follows:- i. Witness admits business relationship with Milkiyatsingh (it is the same person in whose factory signatures on certain documents were obtained by force). ii. Complainant''s witness admits receipt of one notice prior to complaint from the accused (though not three notices). iii. The date of notice received is 20/05/2003 and from Advocate Masurke. iv. Arranging press-conference by the accused and news flashed on television. v. Arrest of the witness on 29/05/2003 by Lakadganj Police Station. vi. Charge-sheet was filed for the offences under Sections 452, 294, 506(ii) of the Indian Penal Code. vii. Visiting the factory of Milkiyatsingh on 15/05/2003 at Kamptee Road. viii. Admitting execution of an agreement for purchase of agricultural land of accused. ix. Witness acted on it and published a paper publication on 25/05/2003. PROOF OF THE ABOVE THEORY 25. Both the sides have got different version. Accused contends that when the witnesses admitted certain facts, they are discharged from the burden of proving those facts. It is further pleaded that there is no need for them to produce the documents about the facts admitted during cross-examination. PROOF OF THE ABOVE THEORY 25. Both the sides have got different version. Accused contends that when the witnesses admitted certain facts, they are discharged from the burden of proving those facts. It is further pleaded that there is no need for them to produce the documents about the facts admitted during cross-examination. He further contends that the burden shifts on the complainant to produce those documents. On the other hand, the complainant contends that merely giving certain admissions does not relieve the accused from producing the documents. They further contend that if the accused wants this court to believe the contents of the relevant documents, it is for them to produce it. NOT PRODUCING DOCUMENTS 26. It is no doubt true that the complainant''s witness has given certain admissions during cross-examination. They are referred above. We can certainly draw inference about receipt of a notice dated 20/05/2003 by the complainant, visiting the factory of Milkiyatsingh on 15/05/2003 and executing the agreement about purchase of land with accused No.3. I fully agree with the complainant that it was primary duty of the accused to produce the documents. At least, the notice dated 20/05/2003 and F.I.R./ Charge-Sheet about offences under Sections 452, 294, 506(ii) of the Indian Penal Code, what prevented the accused from producing them during the trial. Because, admitting steps taken (issuing notice, arrest, filing of charge-sheet) is one thing and reading the contents of the documents is another thing. 27. Let us take a hypothetical situation. Neither accused nor the complainant produces documents. Accused justifies their act of non-production due to admission given during crossexamination. Whereas, complainant pleads that the accused believe on those documents, they shall produce it. When none of them have produced documents, Court can only draw inferences about existence of notice, visit and agreement. Court will be handicapped in reading contents of documents. So, issue is merely by admitting those facts, whether any onus shifts on the complainant. To certain extent, it is true. But, onus on complainant to produce those documents on one hand and onus on accused to produce them, if compared together primary onus is certainly on the accused. It does not extent to reading contents of documents. REBUTTAL OF PRESUMPTION 28. Complainant''S witness has not admitted incident of kidnapping and forcible signing the cheque and documents. But, onus on complainant to produce those documents on one hand and onus on accused to produce them, if compared together primary onus is certainly on the accused. It does not extent to reading contents of documents. REBUTTAL OF PRESUMPTION 28. Complainant''S witness has not admitted incident of kidnapping and forcible signing the cheque and documents. So, the Court cannot draw inference about any incident of kidnapping and forcible signatures obtained on cheque and agreement. Now question remains still, whether probable defence has been made out. Simple denial of liability and denying the case of complainant does not amount to rebuttal of presumption. In this case the accused on one hand disputes issuance of cheque voluntarily and on other hand pointed out lacunae, loopholes and shortcomings in the evidence of complainant. First part of defence is not accepted. But, accused certainly succeeds in bringing on record the lacunae. It includes - (a) not producing materials in support of sale transaction (e.g. account book, tax paid receipts etc.); (b) not examining any witness, supporting the evidence of complainant''s witness. 29. These kinds of evidence are not necessary in a case involving issuance of cheque voluntarily. But, considering the defence put forth, above kind of evidence gets importance. Hence, I agree with the conclusion of the trial Court that the accused is successful in rebutting the presumption. REASONS FOR DISHONOUR OF CHEQUE 30. Cheque return memo at Exh.23 mentions insufficient fund as a reason for dishonour of cheque, whereas accused contends that cheque in question was not complete because as per the internal procedure of the company, at least two signatures are required, whereas, cheque in question only contains one signature. To prove this requirement, the company has examined Bhaudas Raut from Punjab National Bank. 31. It is true that through witness Raut accused has brought on record necessity of signing the cheque by two persons on behalf of the company. It can be believed. Issue does not rest there. Cheque is dishonoured due to insufficient funds. The accused through bank witness ought to have brought on record the reasons for not mentioning in the memo as "cheque is incomplete" They ought to have brought on record the practice of bank while scrutinizing the cheque. They ought to have brought on record why cheque was not dishonoured for reason "cheque is incomplete". Accused lost this opportunity even though they examined bank witness. They ought to have brought on record why cheque was not dishonoured for reason "cheque is incomplete". Accused lost this opportunity even though they examined bank witness. Hence, we have to hold that cheque was returned for the reason ''funds insufficient''. Trial Court has not drawn any conclusion. It was wrongly held that the complainant ought to have brought on record earlier cheques given to the complainant by accused (paragraph 24). RECEIPT OF NOTICE 32. Originally there were three accused persons. Accused No.1 is a company and accused Nos.2 and 3 are the directors. During pendency of the trial, accused No.2 expired. To prove receipt of a notice, complainant relied upon the following evidence. I. Cheque return memo (Exh.23). II. Office copy of the notice dated 20/06/2003 (Exh.25). III. Postal receipts (Exh.26 to Exh.30). IV. Returned envelope in the name of accused Nos.3 (remark- returned to sender) (Exh.34). V. Original notice found in that envelope (Exh.38). VI. Returned envelope issued to accused No.1 - Company (not claimed returned to sender) (Exh.31). VII. Original notice in that envelope (Exh.35). VIII. Returned envelope issued to accused No.2 at M.I.D.C. address. (Exh.32). IX. Original notice in that envelope (Exh.36). X. Returned envelope sent to accused No.2 at Wardhaman Nagar address (not claimed returned to sender) (Exh.33). XI. Original notice in that envelope (Exh.37). 33. There is no document to show receipt of notice by accused No.3 at factory address (admission on Page 31). The grievance of accused is right. Notice to accused No.3 was sent on East Wardhaman Nagar address (returned envelope at Exh.34). Accused No.3 has not pleaded that the address is wrong. All envelops have returned with remark ''refused returned to sender''. It amounts to acceptance. Trial Court''s findings are correct. FINAL CONCLUSION 34. For the above discussion, I find no reason to disagree with the conclusion drawn by the trial Court. No interference is warranted. Appeal stands dismissed. Parties to bear their own costs.