JUDGMENT : H.P. SANDESH, J. 1. This appeal is filed under Section 378(1) of Cr.P.C. challenging the judgment of acquittal passed in C.C.No.437/2009 dated 25.05.2010 on the file of the Prl. Civil Judge and JMFC, Chikodi. 2. The brief facts of the case is that it is the case of the complainant, who is the appellant in this case contended before the Court below by filing the complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instrument Act (for short, the 'N.I. Act') that he had advanced a loan of Rs.90,000/- to the accused for his truck business through his friends on 11.01.2008 at his residence. The accused has assured repayment of the said amount within a couple of months, but failed to repay the same and hence the complainant insisted the accused to pay the amount and the accused had issued the cheque on 06.05.2009 and when the same was presented with his bank, the same was returned with an endorsement 'funds insufficient'. Thereafter, the complainant issued notice to the accused on 08.06.2009 through his advocate and the same was served on him on 10.06.2009 and in spite of receipt of the notice, he did not choose to give any reply and comply the demand of the notice and hence without any other alternative, the complainant has filed the complaint. 3. It is the contention of the complainant that he got himself examined as PW.1 and besides examined one witness as PW.2 and got marked the documents as Exs.P.1 to P.4(a) and the accused also examined himself as DW.1 and examined one witness as DW.2 and he did not choose to mark any documents in support of his defence. 4. The Court below after considering both the oral and documentary evidence, acquitted the accused and hence the complainant has preferred this appeal. 5. 4. The Court below after considering both the oral and documentary evidence, acquitted the accused and hence the complainant has preferred this appeal. 5. The complainant in the appeal memorandum has contended that the Court below ought to have considered that there is a business transaction between the complainant and the accused and the accused himself admitted that he has issued a blank cheque and it clearly shows that the signature of the accused not disputed and after bouncing of the cheque, he has issued the notice and the same was served and the accused did not choose to reply to the said notice and the Court below failed to appreciate the fact that PW.2 has clearly supported the case of the complainant and the Court below erroneously acquitted the accused on the ground that the prosecution has utterly failed to establish the guilt of the accused in spite of sufficiently proved the guilt of the accused and hence the judgment of acquittal is liable to be set aside. 6. 6. The counsel appearing for the appellant in his argument he vehemently contended that the accused did not dispute the issuance of the cheque and also his signature and further he did not dispute the issuance of legal notice and he has not given any reply to the said notice and the Court below erroneously accepting the defence of the accused in para No.19 of the judgment though comes to the conclusion that the accused admitted the issuance of the cheque and no reply has been given to the notice, erroneously comes to the conclusion that the complaint is not prudent manner only on the ground that PW.1 has admitted in the cross-examination that he used to write in the diary about the income and expenditure from the agriculture and tractor business and if really he advanced any loan to anybody he used to write it in the dairy and he has not produced the said dairy before the Court in order to substantiate that he has lent the money and also erroneously observed that it is not the case of the complainant that the accused is the relative of him and only he has examined his relative as one of the witness as PW.2 and he has not chosen to examine his uncle leaving others and comes to the erroneous conclusion and the very reasons assigned by the Court below is opposed to the principles of law laid down by the Hon'ble Apex Court and failed to draw the presumption under Section 139 of N.I. Act. 7. The counsel for the appellant in support of his contention, he relied upon the judgment of the Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in,2010 5 LAWS(SC) 19 and contends that once the issuance of cheque is admitted and notice has been issued to him and when the accused failed to reply to the statutory notice issued under Section 138 of the N.I. Act leads to the inference that there was merit in the complainant's version and the Court below erred in giving more importance to the slight discrepancy in the complainant's version and comes to the erroneous conclusion on surmises and he brought to my notice para No.15 of the judgment. The appellant's counsel also in support of his argument, he relied upon the judgment of the Hon'ble Apex Court in the case of T.P.Murugan (Dead) through LRs Vs. Bojan in Crl.Apl.Nos.950-951/2018 and brought to my notice par No.8 of the judgment, wherein it is discussed with regard to the issuance of the cheque is concerned and also did not give any reply to the notice and further brought to my notice that the Hon'ble Apex Court has observed in the judgment that in spite of overwhelming evidence to establish that the cheques were issued towards the discharge of an existing liability and legally enforceable debt and the respondent having admitted that the cheques and pronote were signed by him, the presumption under Section 139 of N.I. Act would operate and the respondent failed to rebut the presumption by adducing any cogent and credible evidence and hence the defence is rejected. The counsel relying upon the judgment also contends that in the case on hand also, issuance of the cheque is not disputed and also receipt of notice also not disputed and the trial Court ought to have drawn the presumption under Section 139 of N.I. Act when the accused did not rebut the presumption by adducing any cogent and credible evidence and only believed the oral contentions of the accused. 8. The appellant's counsel also relied upon the recent judgment of the Hon'ble Apex Court passed in Crl.Apl.Nos.230-231/2019 in the case of Bir Singh Vs. Mukesh Kumar and the counsel in his argument he vehemently contended that in this judgment also the Hon'ble Apex Court taken note of Sections 138 and 139 of N.I. Act and relied upon the several judgments and the facts of each of the cases are similar to the case on hand. Sections 138 and 139 of N.I. Act require that the Court shall presume liability of the drawer of the cheques for the amounts for which the cheques are drawn and no dispute with regard to the receipt of the notice and he did not choose to give any reply. Sections 138 and 139 of N.I. Act require that the Court shall presume liability of the drawer of the cheques for the amounts for which the cheques are drawn and no dispute with regard to the receipt of the notice and he did not choose to give any reply. He contends that the proposition of law emerges which emerges from the judgments is that the onus to rebut the presumption under Section 139 of N.I. Act that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of N.I. Act and further observed that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars and the same would not invalidate the cheque and the onus would still be on the accused to prove that the cheque was not for discharge of a debt or liability by adducing evidence. In this case, the Hon'ble Apex Court has comes to the conclusion that the High Court patently erred in holding that the burden was on the appellant-complainant to prove that he had advanced the loan and the blank signed cheque was given to him in repayment of the said amount. The counsel relying upon this judgment also contends that when the accused admits issuance of cheque and receipt of notice and also he did not choose to give any reply, under the circumstances, the presumption is in favour of the complainant and the Court below erroneously acquitted the accused. 9. This Court heard the arguments of the appellant's counsel at the first instance on 07.02.2019 and the respondent's counsel was absent and hence in order to meet the ends of justice an opportunity was given to the respondent's counsel to argue the case since the appeal is of the year 2010 and fixed date for hearing the arguments of the respondent's counsel on 14.02.2019 and that on 14.02.2019 also the respondent's counsel did not choose to come and argue the matter and hence the matter is reserved for judgment. 10. 10. Having heard the arguments of the appellant's counsel and also on perusal of the grounds urged in the appeal and the material on record, this Court has to examine whether the Court below has committed an error in acquitting the accused for the offence punishable under Section 138 of N.I. Act and it requires interference of this Court exercising the appellate jurisdiction. 11. First, I would like to make it clear before this Court that this Court is the First Appellate Court since the accused is acquitted before the Court below and hence this Court has got powers to re-appreciate the evidence available before the Court by exercising the appellate jurisdiction and hence having the appellate jurisdiction, this Court has to examine both the oral and documentary evidence available on record. 12. The case of the complainant before the Lower Court in brevity is that the accused had approached the complainant on 11.01.2008 for an advance amount of Rs.90,000/- to do his business and he agreed to repay the same within a couple of months and he did not choose to repay the amount and hence the complainant insisted the accused for repayment of the loan and the accused issued cheque and when the same was presented on 18.05.2009, the same was returned with an endorsement 'funds insufficient' and immediately after the returning of the cheque, the complainant has caused the legal notice on 08.06.2009 and the same was served on 10.06.2009 and when the accused did not comply, he filed the complaint. 13. The complainant in support of his contention, he himself has examined as PW.1 and got marked Exs.P.1 to P.4(a) and in the cross-examination he admits that he had an amount of Rs.50,000/- in his account and the remaining Rs.50,000/- is income from tractor business and he did not produce any document and he was cross-examined with regard to the source of income is concerned. It is elicited that whatever the income he gets from agriculture and tractor business he used to make entry of the same in the diary and not having any difficulty to produce the said diary and further admits that if any loan is advanced, he used to make entry in the diary, but he admits that for having paid the amount to this accused, he did not make the entry in the diary. It is suggested that the accused was working as cleaner in his tractor and also he was attending the coolie work and the said suggestion was denied. In the Cross-examination he says that he has sold the soybean and he was having the said money in his house and also he admits that he did not obtain any bond from the accused for having paid the amount and he admits that he has signed the cheque in his presence and contents of the cheque has not been written in his presence. 14. The complainant also examined one witness as PW.2 and he claims that the complainant belongs to his native place and he is doing tractor business since 2005 and also he knew the accused, who is permanent resident of Bambalawada village of Chikkodi taluk and he says that the accused has taken cash of Rs.90,000/- from the complainant in his residence and the accused while taking the said amount assured the complainant regarding repayment and he did not pay the amount and hence the complainant insisted him to pay the amount and hence he gave the cheque and this witness is cross-examined and in the cross-examination he admits that the complainant is his brother's son and the complainant is having 4-5 acres of land and this transaction was taken place for one hour and the complainant did not take any receipt for having paid the amount and he also confirms that the complainant did not mention the same in the dairy. It is suggested that no such advance amount was given to him and the said suggestion was denied. 15. The accused also examined himself as DW.1 and he claims that the he came to know about the complainant through DW.2 and he worked as cleaner and coolie with the complainant and he claims that DW.2 only introduced him to the complainant and further he claims that in order to admit him for coolie work he insisted him to give cheque and he went along with DW.2 on 30.12.2008 and gave the cheque which is blank. He did not receive any amount from the complainant and the same has been misused by the complainant. He was subjected to cross-examination. He did not receive any amount from the complainant and the same has been misused by the complainant. He was subjected to cross-examination. In the cross-examination he admits that the cheque pertains to him and also admits the signature available on Ex.P.1(a) and further admits that he did not give any letter to the bank not to honour the cheque after the issuance of the cheque-Ex.P.1 and further he admits that Ex.P.1-cheque was given in favour of the complainant but he cannot tell the date of the issuance of the cheque in favour of the complainant. He also did not inform the complainant not to present this cheque in the bank after the issuance of the cheque. He further admits that before filing the case, the complainant issued the notice to him and the same was served on him and further he admits the signature available on the postal acknowledgment as Ex.P.4(a) is belongs to him and also came to know the contents of the notice and in the notice cheque number is also mentioned but he did not meet the counsel after the receipt of the notice and also not given any reply to the notice and there was no any difficulty for him to give reply to the notice that he has not borrowed any loan from the complainant and further he clarifies that he got it read over the contents of the Ex.P.3 through someone else. He further admits that before the issuance of the said cheque, the complainant did not ask him to attend the coolie work and also not called him through anybody else and further admits that before the issuance of the cheque either himself or his family members did not attend the coolie work in respect of the tractor and he could not tell on what date the talks were held with regard to the tractor work but again says before 15 days of issuance of cheque, talks were held and DW.2 was present at that time. He further admits that before going to the coolie work with the complainant he did not issue any cheque in favour of the persons with whom he worked. 16. He further admits that before going to the coolie work with the complainant he did not issue any cheque in favour of the persons with whom he worked. 16. The accused also examined another witness as DW.2 and he claims that the complainant had informed him that he was in need of a cleaner to work for his tractor and hence he took the accused to the complainant and after one week the complainant demanded two blank cheques of the accused and in his presence he gave two cheques in favour of the complainant and subsequently differences arose between them with regard to the payment of salary and subsequently accused left the job of the complainant and hence he told that he is going to file a case against him. In the cross-examination he admits that he is a graduate and the accused and he himself belongs to the very same village. He admits that the complainant is having land Bennihalli village and also having a tractor and the complainant is also having good financial condition and there was no any document with regard to the transaction of complainant and the accused and he is also not aware of any document given to any other person by the accused in connection with his job. He further admits that in his village while taking the job no agreement or cheques were collected in his presence. 17. Now let me appreciate the contention of the appellant's counsel and also the defence raised by the accused in the case. The main contention of the accused is that the cheque was collected as security in order to take the accused for employment and hence he has issued the cheque. It is important to note that when the accused contends that the cheque was collected as security for his job, he did not dispute the issuance of the cheque and also did not dispute the receipt of the notice and also in the cross-examination he categorically admits that he got it read the notice-Ex.P.3 through someone else and also he was aware of the contents of the notice, but he did not choose to give any reply to the notice and further he categorically admits that there was no any difficulty for him to give reply and if really he has given any cheques for security, then he would have given the reply immediately. When the complainant notice has stated that he had advanced the amount in favour of the accused and even going through the contents of the notice, he kept quite and hence it is clear that the defence which has been taken by the accused is only an afterthought after representing in the Court through the counsel. 18. It is rightly pointed out by the appellant's counsel that when the accused admits the issuance of the cheque and did not dispute the signature and also when he did not give any reply, the trial Judge ought to have been drawn the presumption under Section 139 of N.I. Act and no doubt the presumption is rebuttable presumption and once the cheque has been admitted and he has not given any reply to the notice, he has to rebut the said presumption by placing the cogent evidence before the Court as held by the Hon'ble Apex Court in the judgment referred above. It appears the Court below failed to consider the admissions elicited from the mouth of PW.1 and he categorically admits that he has received the notice and know the contents of the notice that too he got it read through someone else, he did not give any reply and further more he categorically admits that before issuance of the cheque, the complainant did not call him for coolie work or through anybody else called him to coolie work and also he categorically admits that he cannot tell on what date the complainant called him for tractor work but only he says that 15 days prior to issuance of the cheque talks were held and his evidence is contrary to his own admission. Further, it is important to note that the defence taken in the evidence that as a security for his job he gave cheques and in the cross-examination he categorically admits that before giving the cheques in favour of the complainant when he went for work with others he has not given any cheque and these are the admissions are elicited from the mouth of PW.1 and no doubt PW.2 is the relative of the complainant and the same itself is not a ground to reject the evidence of PW.1 and similarly DW.2 also admits in the cross-examination that both the accused and he himself belongs to the very same village and having acquaintance with each other and further DW.2 categorically admits the financial conditions of PW.1 regarding the source of income is concerned and in the cross-examination of DW.2 also he categorically admits he did not witness any entering of contract or issuance of cheque in connection with any job security in favour of anybody else and when all these answers are elicited from the mouth of DW.2, the trial Judge ought not to have given more importance to the defence raised by the accused and the trial Judge has committed an error in not appreciating the evidence on record in a right perspective. In order to substantiate the contention of the accused that he gave the cheque as security for his job, he has not produced any documentary proof except the oral say of DW.2 and the evidence of DW.2 also not comes to the aid of the accused to believe the defence of the accused. 19. In order to substantiate the contention of the accused that he gave the cheque as security for his job, he has not produced any documentary proof except the oral say of DW.2 and the evidence of DW.2 also not comes to the aid of the accused to believe the defence of the accused. 19. It is rightly pointed out by the appellant's counsel that once the cheque has been admitted and notice has been issued to the accused and even aware of the contents of the notice, the accused did not choose to give any reply and he kept quite and only the defence is taken which is an afterthought and this ought to have been considered by the Court below and the Court below lost its sight with regard to the aspect of the non-issuance of the reply to the notice in spite of he was aware of the contents of the notice and the Hon'ble Apex Court in the judgment in the case of T.P.Murugan's case (supra) has held that the accused failed to establish that the cheques were not issued towards the discharge of an existing liability and once the accused having admitted that cheques are signed by him, the presumption under Section 139 of N.I. Act would operate and in the judgment of Rangappa's case (supra) also in the similar set of facts of the case held that issuance of cheque has been admitted and no reply has been given to the notice which has been served on him. The Hon'ble Apex Court held that the defence theory of the accused cannot be accepted. The Hon'ble Apex Court also in the recent judgment in the case of Bir Singh's case (supra) discussed in detail with regard to the presumption under Section 139 of N.I. Act including the meaningful reading of Sections 20, 87 and 139 of N.I. Act makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. The very defence taken by the accused is not probable and also no probable evidence is placed before the Court below to accept the theory of the defence and in spite of the same, the trial Court has committed an error in coming to the conclusion that the complainant has not proved his case in spite of the accused did not rebut the case of the complainant. 20. For having considered both the oral and documentary material available on record and the admissions elicited from the mouth of the witnesses, I am of the opinion that the trial Judge has committed an error in dismissing the complaint and hence it requires interference of this Court to set aside the judgment of acquittal of the trial Court. 21. In view of the discussions made above, I proceed to pass the following: ORDER The appeal is allowed. The judgment of acquittal passed by the Prl. Civil Judge and JMFC, Chikodi in C.C.No.437/2009 dated 25.05.2010 is set aside. The accused is convicted for the offence punishable under Section 138 of the N.I. Act. The accused is sentenced to pay double the amount of the cheque amount. If he fails to pay the double the amount of the cheque within one month from today, he shall undergo simple imprisonment for a period of one year. The accused is directed to pay the fine of Rs.5,000/- which goes to the State.