JUDGMENT : This appeal is by the complainant, who filed the complaint before the Court below under Section 200 of Cr.P.C. invoking the offence punishable under Section 138 of Negotiable Instrument Act (for short, ‘N.I. Act’) against the accused and the Court below acquitted the accused for the said offence and hence, the complainant has preferred this appeal questioning the order of acquittal passed in C.C. No.637/2008. 2. The brief facts of the case is that the complainant in his complaint contended that he is a B.E. Mechanical Engineer doing consultation work, supervision of engineering and other construction work. The accused is a contractor and who took contract work from the Kirloskara Ferrous Industries Limited, Bevinahalli, Koppal to do work of construction of pattern shop, mould shop and other miscellaneous work with an estimation project of Rs.45,00,000/-. As the accused was not having expertise to do his work, he engaged the complainant for expertise service and accordingly the complainant discharged his duty. After completion of work the accused had issued cheque for Rs.4,75,000/-to the complainant for the service rendered by him. When the said cheque was presented, the same was returned with an endorsement ‘insufficient funds’ and hence, he caused legal notice to the accused and the same was served and he has issued an untenable reply. The Court below recorded the evidence of the complainant as PW.1 and the complainant examined another witness as PW.2 and relied upon the Exs.P.1 to P.7 and the accused did not choose to lead any defence evidence. The Court below taking into note of the oral and documentary evidence acquitted the accused. Hence, the present appeal. 3. The complainant in the present appeal has contended that the Court below while appreciating the evidence held that the transaction in question is illegal and as such provisions of Section 138 of N.I. Act is not applicable. Further, committed an error in holding that there is no legally recoverable debt. The very finding of the Court below is wholly illegal and not sustainable in law. 4. Further, committed an error in holding that there is no legally recoverable debt. The very finding of the Court below is wholly illegal and not sustainable in law. 4. It is the other contention of the appellant that the learned Magistrate failed to take note of the fact that the complainant was unemployed and the accused is doing the business of placement services in foreign countries and the money which he received for the services proposed to be rendered by him and towards the expenses in this regard, and on failure on the part of the accused to do this service he has agreed to refund the amount and also issued cheque and the same cannot be considered as illegal gratification and the debt owed by the accused is legally recoverable debt and as such provisions of Section 138 of N.I. Act is applicable and the Court below erred in not convicting the accused. The Court below has erred in holding that the cheques in question were not issued for discharge of legally recoverable debt and the Court below failed to take note of the fact that the very act of the accused amounts to an offence punishable under Section 420 of IPC and ought to have convicted the accused for the said offence. 5. The other contention that the accused has not disputed the signature available on the cheque and when the cheque has not been denied, the Court below ought to have drawn presumption under Sections 118 and 139 of N.I. Act. The Court below has committed an error in dismissing the complaint on the basis of the decision of the High Court of Delhi reported in 2007 CLJ 2262 and the very application of the said judgment is erroneous. The Court below failed to take note of the fact that the burden is upon the accused to prove that he is not guilty and the same has not been considered by the Court below and erroneously acquitted the accused and hence, the judgment of acquittal requires to be set aside and the accused has to be convicted. 6. The Court below failed to take note of the fact that the burden is upon the accused to prove that he is not guilty and the same has not been considered by the Court below and erroneously acquitted the accused and hence, the judgment of acquittal requires to be set aside and the accused has to be convicted. 6. The appellant’s counsel in his argument he vehemently contends that the Court below failed to take note of the fact that the complaint was given after four months of receipt of the notice and though it is contended that the cheque was stolen and the very lodging of the complaint is nothing but an afterthought and also failed to take note of B-report was filed in respect of the said complaint and in spite of it, the Court below accepted the version of the accused. The counsel also contends that the complainant has examined himself as PW.1 and also examined one witness as PW.2 and nothing is elicited in the cross-examination of PW.1 and PW.2 to accept the version of the accused. The Court below also failed to take note of the fact that an endorsement was issued as ‘insufficient funds’ and not ‘the account has closed’. 7. The accused also while in the cross-examination suggested that the complainant worked as engineer but he contends that he worked only to gain knowledge and the very suggestion shows that the complainant has worked with him itself shows that the said cheque was issued towards remuneration and the same has not been considered. The other contention that the writings available on the cheque is same handwriting including the signature and the complaint is filed after four months stating that the cheque was stolen and that too after the issuance of notice and with regard to loss of cheque is concerned no complaint is given and the very filing of the complaint for loss of cheque is nothing but an attempt made to overcome the issuance of cheque and the Court below erred in relying upon the judgment of Krishna Janardhan Bhat’s case and the very approach of the Court below is erroneous. 8. The complainant’s counsel in his argument he relied upon the judgment of the Apex Court reported in LAWS (SC) 2010 519 in the case of Rangappa Vs. 8. The complainant’s counsel in his argument he relied upon the judgment of the Apex Court reported in LAWS (SC) 2010 519 in the case of Rangappa Vs. Mohan and contends that the Apex Court held that once the issuance of cheque is not disputed, the burden lies on the accused to rebut the presumption under Section 139 of N.I. Act and onus is on the accused to raise a probable defence and the same has not been proved by the accused and he did not choose to enter the witness box and to raise a probabalise defence and hence, the judgment in the case of Rangappa Vs. Mohan aptly applicable to the case on hand. The complainant’s counsel also relied upon the judgment reported in 2013 STPL (Web) 603 SC in the case of C.Keshavamurthy Vs. H.K.Abdul Zabbar and in this judgment the Apex Court relying upon the judgment of Rangappa Vs. Mohan held that the Magistrate and the Sessions Judge have rightly appreciated the evidence and the High Court committed an error in acquitting the accused and the burden of proof lies on the accused to rebut the evidence and the same has not been done. 9. The counsel appearing for the accused in his argument he contends that PW.1 in the cross-examination admits that he does not know about the specialized expertise and the question of considering the cheque was issued towards his expertise work cannot be accepted. Only PW.1 says that it was an oral agreement and in the cross-examination he categorically admits that he was not aware of anything about the expertise. The Court below while discussing the evidence available on record at page Nos.9 to 13, 14 and 15 categorically held that the evidence of PW.1 does not inspires the confidence of the Court and the burden lies on the complainant to prove that the cheque was issued towards debt or liability. The presumption is also rebuttable presumption and there was no need to rebut the presumption in the case on hand and also no need to enter the witness box when the answers are elicited from the mouth of PW.1 regarding the very issuance of cheque is doubtful and the Court below has not committed any error in acquitting the accused. 10. 10. Having heard the arguments of the complainant’s counsel and the accused counsel, this Court has to re-appreciate the evidence available on record and whether the Court below has committed an error in acquitting the accused for the offence punishable under Section 138 of N.I. Act. 11. This appeal is against the order of acquittal and this is the first appeal and when this is the first appeal, this Court has to re-appreciate both the oral and documentary evidence available before the Court. The complainant in order to substantiate his contention, he relied upon his own evidence and documentary evidence Exs.P.1 to P.7 and also examined another witness as PW.2 and the accused did not choose to lead any evidence except marking Ex.D.1 i.e. the statement made by the complainant before the Hospet Police. 12. Now let me appreciate both the oral and documentary evidence. Before appreciating the evidence, this Court would like to make a mention the nutshell of the complaint. The complainant in the complaint specifically pleaded that the accused had issued the cheque towards the service rendered by the complainant to the accused for the construction of the pattern shop, mould shop and other miscellaneous work. The complainant in his evidence also reiterated the same and he was subjected to cross-examination. In the cross-examination it is elicited that he demanded 15% of the work, but it was agreed to give 10% and he also agreed for the same. No doubt, in the cross-examination it is elicited that there was no any written agreement and there were no any documents for entrustment of work to him. He says work was started in the year 2006 and the same was completed in October-2007. In the cross-examination he claims that Kumar Pattan and himself were staying in a rented house and suggested that he was staying along with the accused and the same was denied. However, in the cross-examination he admits that M/s. Amminabhavi Hegde is the approved engineer of Kirloskara Ferrous Industries Limited and he only gave the design and map and it is elicited that based on the design and map, they were working in the worksite. He also admits that the said M/s. Amminabhavi Hegde was also having supervisory control against his work. He also admits that the said M/s. Amminabhavi Hegde was also having supervisory control against his work. It is suggested that the accused used to give 3-4 cheques in advance in order to avoid difficulty in making the payment and the said suggestion was denied. It is suggested that he himself and the Kumar Pattan used to draw an amount of Rs.20,000/-, but he admits that they used to take only an amount of Rs.10,000/-for payment. It is suggested that in the first week of August-2007 the accused lost ATM card and some signed cheques and the said fact is brought to the notice of this complainant and other person Kumar Pattan and they did not respond. It is suggested that when he lost the ATM card and signed cheques he went and got it closed his bank account and the witness says he does not know anything about the same. However, he admits that against him a complaint is given in Crime No.170/2008 and he says that the said case is under investigation. The witness volunteers that the said case was filed after he filed the complaint. He admits that both he himself and his friend Kumar Pattan are the accused in the said case. It is suggested that he was not having any knowledge in big projects and hence, he voluntarily came and joined the accused to gain the knowledge and the same was denied. It is suggested that in Ex.P.1 except the signature other handwritings are in his handwriting and the same was denied. It is suggested that he has stolen the cheque and filled up Ex.P.1 and he is giving false evidence before the Court and the said suggestion was denied. Except Ex.P.1 he has not produced any document before the Court that the said cheque was given for his expertise work. He admits in the complaint and also in the notice that he did not mention anything that the accused agreed to pay an amount of Rs.5-5½ lakhs in the presence of Kumar Pattan and in the complaint he did not mention that the said Ex.P.1-cheque was given in the presence of the K.R.Patil and Kumar Pattan. He also admits that the accused has given the complaint against his friend Kumar Pattan and the same is pending for trial. He also admits that the accused has given the complaint against his friend Kumar Pattan and the same is pending for trial. He admits that in terms of Ex.P.7 he has stated that he himself, Satish Patil and Kumar Pattan all of them took the construction work for Rs.40 lakhs in the name of the accused and the same is not mentioned in his complaint and there was no any averment in the complaint that all of them have to share the profit equally. It is suggested that he gave the statement before the police that all the three have agreed to share the amount and the said suggestion was denied and hence the said statement is marked as Ex.D.1. 13. The complainant also examined another witness as PW.2 and he says in his presence an agreement was entered between the complainant and the accused at Dharwad orally and the accused has agreed to pay the amount to the complainant for his supervisory work and hence he issued the cheque for Rs.4,75,000/-. In the cross-examination he admits that the contract work was taken in the name of the accused and all of them were supervising the same jointly and further he admits that in February-2006 the complainant and the accused and Kumar Pattan have agreed to share the profit equally and no document came into existence in that regard. 14. Now let me consider the documents available on record. The complainant relied upon the document Ex.P.1-Cheque which is dated 31.05.2008 and when the cheque was presented an endorsement was issued from the bank in terms of Ex.P.2 as ‘insufficient funds’ and hence legal notice was caused in terms of Ex.P.3. The contents of the complaint is mentioned in Ex.P.3-notice and notice also served on the accused in terms of Ex.P.4. The accused gave reply stating that the complainant himself voluntarily came and approached the accused to work under him only with intent to gain knowledge and to get expertise in industrial work. The contents of the complaint is mentioned in Ex.P.3-notice and notice also served on the accused in terms of Ex.P.4. The accused gave reply stating that the complainant himself voluntarily came and approached the accused to work under him only with intent to gain knowledge and to get expertise in industrial work. The accused in the reply notice contended that in order to make the payments in his absence keeping utmost trust and confidence on the complainant and Kumar Pattan he used to keep blank signed cheque leafs of the bank and when the accused found missing of some signed blank cheque leafs and his ATM card, brought the same to the notice of the complainant and Kumar Pattan and both of them have expressed their ignorance about missing of the cheque. The same were misused by both of them. This reply is dated 22.08.2008 and notice is dated 21.07.2008 and no dispute with regard to service of notice and reply given to the complainant. Ex.D.1 confronted and same was denied in spite of the same was marked. 15. On perusal of the cross-examination of PW.1, there is no dispute with regard to the fact that the complainant worked with the accused and in the cross-examination of PW.1 the counsel appearing for the accused himself suggested the same and elicited the answer that this complainant was working based on the design and map given by the M/s.Amminabhavi Hegde and the said M/s.Amminabhavi Hegde was having supervisory control on him. No doubt, in the cross-examination it is elicited that there was no any written agreement for the work which the complainant has discharged. The defence taken by the accused that the cheque was lost and the same has been misused by this petitioner. The answer elicited from the mouth of the PW.1 that during the absence of the accused, the complainant and Kumar Pattan both were used to encash the amount to the tune of Rs.10,000/-and used to make the payment, but not as Rs.20,000/-. Hence, it is clear that in the absence of the accused they used to encash the cheque and used to make the payment. The other answer that the accused has filed the complaint against this complainant and also his friend Kumar Pattan. 16. Hence, it is clear that in the absence of the accused they used to encash the cheque and used to make the payment. The other answer that the accused has filed the complaint against this complainant and also his friend Kumar Pattan. 16. On perusal of Ex.P.1-cheque, no doubt the handwriting available is one and the same and it is the contention of the accused that he had intimated the bank that he has lost the cheque. It has to be noted that in Ex.P.2 an endorsement was issued as ‘insufficient funds’. The accused did not place any material before the Court that he had intimated the bank immediately when he lost the cheque. Further, it is important to note that the notice was issued on 21.07.2008 and the notice was served on 22.07.2008 and the reply is dated 22.08.2008 almost after one month and Ex.P.6-complaint which was given by the accused is dated 16.10.2008 and the order sheet reveals the said complaint was given almost after three months of issuance of the notice and hence, it is clear that the very complaint given is only an afterthought and when the accused himself admits that the complainant was worked with him and the theory of cheques were stolen cannot be accepted. If really the cheques were lost, immediately the accused would have given the complaint and intimation to the bank and the accused also did not examine any official of the bank when the said intimation was given to the bank and the reason for the return of the cheque with an endorsement ‘insufficient funds’, the same has not been explained by the accused. 17. 17. It is further important to note that when the accused had gone to the extent of filing the complaint after three months of receipt of notice, he ought to have examined himself before the Court in order to rebut the evidence of the complainant and simply taking the defence that he lost the cheque, gave the complaint which are all subsequent to the issuance of the notice and no material is placed that immediately after missing of cheque he ahs given the complaint and also given intimation to the bank not to honor the amount and the bank has issued an endorsement as ‘insufficient funds’ and not given the endorsement that the accused has given any representation or intimation not to honor the cheque on the ground that he lost the cheque. The Court below has committed an error in coming to the conclusion that the transaction is illegal and extracted the answers elicited from the mouth of PW.1 with regard to the agreement between the parties about the work and when the accused himself admits that he was working with him and the defence was taken that he was not having any experience in big construction work he voluntarily came to gain the knowledge and he did not dispute that the complainant did not work with him and the very suggestion made to the accused has not been discussed in the evidence. The Court below proceeded in one way. The Court below proceeded in one way. Only answers elicited from the mouth of PW.1 with regard to encashing of an amount of Rs.10,000/-in the absence of the accused and it is not the case of the accused that he used to give blank cheques in favour of the complainant and nothing is suggested in the cross-examination also and no doubt in the cross-examination it is elicited from the mouth of PW.1 that talks were held in order to share the profit and also answers are elicited in the cross-examination that the same was not mentioned in the complaint and before the police he gave the statement that there was an understanding among them and mere eliciting the answer itself cannot be a ground to come to the conclusion that the cheque is issued for illegal purpose and even if such an answer is elicited, the contract work is taken for the construction work that too for the construction of pattern shop and mould shop i.e. (casting, cooking conveyer shed) to the extent of worth of Rs.45 lakhs and the same is also not disputed by the accused. When such being the material available before the Court, the trial Judge has committed an error in coming to the said conclusion that the same is not for any illegal purpose i.e. for the supervisory work and I have already pointed out that when the accused did not dispute the fact that he availed the services of the complainant and though he contends that it is only the complainant, who came voluntarily to gain the knowledge, there is no such evidence before the Court in order to come to the conclusion that it is only the complainant, who came voluntarily to gain the knowledge. The accused did not choose to probabalise his evidence by entering into the witness box. The accused did not choose to probabalise his evidence by entering into the witness box. No doubt, if any material answers are elicited from the mouth of the complainant, no need to enter into the witness box and when he categorically admits engaging of the complainant for his services and the same has not been disputed and when the issuance of the cheque has not been disputed and the very theory of stolen is also nothing but an afterthought and all the materials of Ex.P.6-complaint and the reply notice is also after receipt of the notice and complaint is also filed after three months and hence, those documents cannot be believed and mere filing of the complaint is not the basis to come to the conclusion that the accused has probabalised his defence. 18. When the accused has taken the defence that his cheque was stolen, he ought to have entered the witness box and explained the circumstances in which the cheque was stolen and I have already pointed out that mere the admission elicited from the mouth of PW.1 that he had encashed the cheque for Rs.10,000/-itself is not the ground to come to the conclusion that an empty blank cheque was in the hands of the complainant and the accused has to explain when he gave the blank cheque and that has not been explained and also on perusal of Ex.P.1, I do not find any different handwritings including the date and also the contents of the handwriting available on record and though it is suggested in the cross-examination that the same is in the handwriting of the complainant and he categorically denied the said suggestion and when there is no any admission on the part of the complainant, the cheque has been misused by him or the same is in his handwritings, it cannot be contended that the cheque was misused. The Court below failed to take note of the fact that the reply was given after one month of receipt of the notice and also complaint was filed after three months of the issuance of the notice and if any material is placed before the Court that before the issuance of the notice, he has intimated the bank and he has given the complaint prior to the issuance of the notice, then there would have been force in the contention of the accused and the document which the accused relies upon is subsequent to the issuance of the notice and in order to probabalise the defence at least the accused ought to have entered the witness box and given explanation for the cheque which contains his signature and the signature has not been disputed. 19. The counsel appearing for the appellant rightly relied upon the judgment in the case of Rangappa Vs. Mohan referred supra and the same has been relied in C.Keshav Murthy’s case referred supra and the Apex Court in Rangappa Vs. Mohan’s case has come to the conclusion that the burden is upon the accused to prove and rebut the evidence of the complainant and in the case on hand also the complainant made out the case that he worked with the accused and the accused counsel himself has suggested the same in the cross-examination of PW.1 and the case of the complainant is also the cheque has been given in respect of the services rendered by him and only the contention of the accused that the service which he has rendered it is only for gaining the knowledge and the same is not substantiated by any material before the Court and the Court cannot expect that any person rendering his service is only for gaining the knowledge without any remuneration and the Court below failed to take note of this aspect while appreciating the evidence in a right perspective. The Apex Court in the judgment referred supra has categorically held that the burden lies on the accused once he admits the signature available on the cheque and he has to rebut the presumption under Section 139 of N.I. Act and no doubt, the presumption is a rebuttable presumption and when the material is available before the Court with regard to he rendered services to the accused and when the complainant contends that the said cheque was given towards his service and the cheque also contains his signature, it is the duty cast upon the accused to probabalise his defence adducing his evidence and the Court below taking into note of certain answers elicited from the mouth of PW.1 come to the erroneous conclusion that Section 138 of N.I. Act does not attracts and hence, the very approach of the Court below is not in right perspective and in order to probabalise his defence not entered the witness box and his defense remains as defence only and no document is produced and the complaint is also filed after three months of notice and hence, it requires interference of this Court and the impugned order is liable to be set aside. 20. In view the above discussions, this Court proceed to pass the following: ORDER The appeal is allowed. The judgment of acquittal passed by the Prl. Civil Judge (Jr.Dn.) and Prl. JMFC, Dharwad in C.C. No.637/2008 is hereby set aside. The accused is convicted for the offence punishable under Section 138 of N.I. Act. The accused is directed to pay the cheque amount in favour of the complainant within a period of six weeks from today. If he fails to pay the cheque amount, he shall undergo simple imprisonment for a period of one year.