ORDER : 1. The present appeal has been filed aggrieved by the judgment dated 12.11.2010 passed by the Addl. Sessions Judge, Bellary in Criminal Appeal No. 28/2009. By way of the said judgment the Sessions Judge has pleased to acquit the accused in C.C. No. 1399/2005 which had been filed by the appellant herein alleging that there is an offence committed under Section 138 of Negotiable Instruments Act, as against the accused therein. 2. C.C. No. 1399/2005 had been filed by the respondents herein alleging that the respondents owed a sum of Rs. 5,67,116/- for the purchase of liquor from the petitioner towards which the respondents as Partners of M/s. Laxmi Traders had issued a cheque bearing No. 158671 dated 31.03.2005 drawn on Canara Bank, Station Bazar, Gulbarga. This the petitioner claim was in discharge of a legally valid debt due and liable to be paid by the respondents to the petitioner. On receipt of the said cheque the petitioner presented the same to their bankers ING Vysya Bank, Parvathi Nagar Branch, Bellary on 31.03.2005 for encashment and to their surprise the same was returned dishonored on 12.05.2005 with the endorsement “funds insufficient.” Hence, the complainant got issued legal notice on 06.06.2005 calling upon the accused to pay the entire amount due (Ex.P4). The accused replied to the same vide Exs.P5 to P8 calling upon the petitioner to produce duplicate/Xerox copies of the invoices and had also contended that the blank cheques had been provided as security in regard to the financial assistance extended to the respondents by the petitioner herein. The documents sought for by the respondents were not furnished by the petitioner. 3. The petitioner filed a complaint under Section 138 of Negotiable Instruments Act. The complainant got examined himself as PW-1 and got marked 10 documents and closed his side. The accused recorded a statement under Section 313 of Cr.P.C. and thereafter chose not to lead any evidence on their behalf. 4. The trial Court having gone through the pleadings as also the exhibits on record was of the opinion that a cheque had been issued by the respondents to the petitioner which came to be dishonored therefore the issuance of the cheque was to discharge a debt and dishonor of the cheque amounted to an offence punishable under Section 138 of Negotiable Instrument Act. More so since there is a presumption in terms of Section 139 of the Act, that the cheque issued is for a legally valid debut is due and liable to be paid in view thereof. 5. The trial Court held the respondents guilty of the offences, respondent Nos. 1 to 4 were directed to make payment of fine of Rs. 11,35,000. Out of the said fine an amount of Rs. 11,30,000/- was directed to be paid to the complainant as compensation. In default of the above payment the Court directed the accused to undergo simple imprisonment for six months. 6. Aggrieved by the said judgment of the trial Court, the respondents herein preferred an appeal under Section 374 of Cr.P.C. before the Addl. Sessions Judge, Bellari in Criminal Appeal No. 28/2009. 7. In the said appeal, it was contended that the trial Court has not taken into consideration the fact that the petitioner has not been able to establish any legally valid debt due and liable to be paid. Though there are business transactions, it was for the complainant to produce the documents to establish legally valid debt due and liable to be paid. The same was countered by the petitioner on the ground that issuance of the cheque itself establishes the amount is liable to be paid by the respondents, if not for the amounts being due the respondents would not have issued any cheque to the petitioner. 8. The Appeal Court held that Section 139 of the Act, raises a presumption in favour of the holder of the cheque that the same has been issued for the discharge or any debt or liability but however the complainant has to prove the existence of legally enforceable debt payable to him by the accused as on the date of issuance of the cheque. On this ground and certain other incidental grounds the First Appellate Court held that the complainant had failed to prove the existence of a legally valid debt and therefore set aside the order of the trial Court. It is aggrieved by this order of the First Appellate Court dated 12.11.2010 that the petitioner is before this Court. 9. Heard Smt. Malathi Reddy, learned counsel for the appellant and Sri. H.R. Deshpande, learned counsel for the respondents. 10. It is aggrieved by this order of the First Appellate Court dated 12.11.2010 that the petitioner is before this Court. 9. Heard Smt. Malathi Reddy, learned counsel for the appellant and Sri. H.R. Deshpande, learned counsel for the respondents. 10. Smt. Malathi Reddy, learned counsel contends that the finding of the First Appellate Court is improper in that the respondents had not even lead any evidence and did not produce any documents. Though the respondents had contended that there was an agreement entered into between the petitioner and the respondents, the said agreement was not produced. Thus the entire defence raised by the respondents was make believe. The First Appellate Court ought not to have disturbed the finding of the trial Court since the fact of dishonor of cheque itself would establish that there was an offence committed by the respondents. She further submitted that the fact that the respondents have admitted to business transactions would give a reasonable presumption that there are financial transactions between the petitioner and the respondents and therefore had issued the cheque towards discharge of debt owned by them to the petitioner. She relies upon the decision in ICDS Ltd. vs. Beena Shabeer and Another, (2002) 6 SCC 426 more particularly paragraph No. 10 thereof which is hereunder reproduced for easy reference: “The language, however, has been rather specific as regards the intent of the legislature. The commencement of the Section stands with the words “Where any cheque.” The above noted three words are of extreme significance, in particular, by reason of the user of the word “any” the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment.” 11. Relying on the said extract Smt. Malathi Reddy, learned counsel submits that the fact of dishonor of the cheque ought to have been sufficient for the First Appellate Court not to interfere with the well reasoned judgment of the trial Court. 12. Per contra, Sri. H.R. Deshpande, learned counsel submits that from the very beginning the respondents have disputed that there is any amounts due on the part of the respondents to the petitioner. He contends that immediately on receipt of Ex.P4, legal notice, Ex.P5 to P8 reply notices were issued wherein the respondents had categorically called upon the petitioner to produce duplicate/Xerox of the invoices. They had also stated that on account of certain financial facilities to be extended by the petitioner to the respondents, the respondents had deposited certain blank cheques with the petitioner since the petitioner did not provide such financial assistance. There was no payment due from the respondents to the petitioner. However, the petitioner has misused the blank cheques and presented the same for encashment. On this ground, the respondents at the very initial stage had denied the liability and contended that there is no legally valid debt due and liable to be paid by them. 13. Sri. H.R. Deshpande, learned counsel also refers to the cross-examination of CW-1, who has at one place admitted that towards the supply of liquor made by the petitioner to the respondents, the petitioner had raised invoices on the respondents. CW-1 has also admitted that an agreement had been entered into between the petitioner and the respondents and he could produce both the documents. However, on a subsequent date when said PW-1 was further cross-examined, CW-1 denied any invoices have been raised. Learned counsel submits that in view of the petitioner-complainant not having established any case, the respondents-accused were well within their rights not to enter the witness box and lead their evidence. The accused therefore could rely upon the lacuna in the case of the petitioner. Learned counsel submits that in view of the petitioner-complainant not having established any case, the respondents-accused were well within their rights not to enter the witness box and lead their evidence. The accused therefore could rely upon the lacuna in the case of the petitioner. He relies upon the decision of the Apex Court in Basalingappa vs. Mudibasappa, (2019) 5 SCC 418 , more particularly paragraph No. 25 thereof which is hereunder reproduced for easy reference: 25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:- 25.1 Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2 The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3 To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence. 14. On the basis of the above summarization by the Apex Court, Sri. H.R. Deshpande, learned counsel contends that the presumption under Section 139 was rebuttable. The reubtal in this case was done by the respondents by way of legal notice as also by way of cross-examination where under the respondents have called upon the petitioner to establish the liability on the part of the respondents by having denied the same and also by stating that they had issued blank cheque which had been misused by the petitioner. 15. 15. The said presumption having been rebutted and the Rule of evidence applicable to the said rebuttal being preponderance of probability, it was for the petitioner-complainant to prove his case beyond reasonable doubt which the petitioner has not done. Hence, he seeks for dismissal of the above appeal. 16. Having considered the pleadings, exhibits as also the arguments and decisions produced by both the parties the points for consideration that would arise for this Court is: (a) Whether for the purpose of establishing an offence under Section 138 of Negotiable Instrument Act, it is required for the complainant to prove legally valid debt? (b) Whether the accused in such a proceeding is required to prove the contrary or mere rebuttal is sufficient? (c) Whether the impugned judgment of the First Appellate Court suffers from any legal infirmity calling for interference? (d) What order? 17. As discussed earlier and noticed, the petitioner who is the complainant before the trial Court apart from having produced the dishonored cheque (Ex.P1), petitioner bankers memo of dishonor (Ex.P2), respondents-bankers memo of dishonor Ex.P3, legal notice Ex.P4, reply notice Exs.P5 to P8, rejoinder notice Ex.P9 and the complaint in PCR No. 124/2005 (Ex.P10), has not produced any other documents to establish that there is any debt due and liable to be paid. In that Ex.P1 being cheque and Ex.p4 being a demand notice are contended to be sufficient by the petitioner to establish the debt due and liable to be paid by the respondents. The decision in ICDS Ltd. vs. Beena Shabeer, is relied upon by the learned counsel for the petitioner to contend that issuance of cheque itself indicates that the cheque has been issued for the discharge of a debt or other liability if this test is not satisfied and if the petitioner-complainant were not to lead any evidence and establish a legally valid debt, the petitioner-complainant cannot contend that there is a dishonor of a cheque more so when the same is being categorically denied by the respondents-accused. 18. The only witness examined being CW-1 on the part of the petitioner though has stated initially that he is in possession of the invoices and agreement had chosen not to produce those documents and subsequently during further cross-examination has also denied that any invoices were in existence. 18. The only witness examined being CW-1 on the part of the petitioner though has stated initially that he is in possession of the invoices and agreement had chosen not to produce those documents and subsequently during further cross-examination has also denied that any invoices were in existence. It is not possible for any transaction of liquor to be done in the absence of invoices more so since liquor is an excisable commodity, under the Central Excise Act, any item of liquor sold would have to be accompanied by invoices, the fact that despite the petitioner having been put on notice as regards production of the invoices even duplicate/Xerox, the petitioner has chosen not to produce them would establish that there is no transaction in respect of this particular amount relatable to liquor as contended by the petitioner. Thus, it cannot be contended that the cheque has been issued in discharge of a legally valid debt by the respondents to the petitioner. 19. In the circumstances stated above, there is no legal infirmity in the order passed by the First Appellate Court requiring any interference by this Court. The judgment of the First Appellate Court is proper and does not call for any interference. 20. The appeal is therefore dismissed and in the nature and circumstances of the case there shall be no order as to costs.