JUDGMENT : 1. The present Criminal Appeal is filed by the Appellant-Original Complainant under Section 378 of the Criminal Procedure Code (for brevity ‘the Code’) being aggrieved and dissatisfied with the judgment and order passed by the learned Metropolitan Magistrate, Court No. 12, Ahmedabad (for brevity ‘the learned Trial Court’) on 30.05.2009 in Criminal Case No. 777 of 2001, wherein the Respondents-Original Accused have been acquitted under Section 255(1) of the Code for the offences punishable under Section 138 of the Negotiable Instruments Act, 1861 (for short ‘the NI Act’). 2. Heard learned Advocate Mr. R. K. Savjani with Ms. Prachi Thakker for learned Advocate Mr. Ashwin Panchal for the Appellant (for brevity ‘the Complainant’) and learned Advocate Mr. Nilesh A. Pandya for learned Advocate Mr. Haresh H. Patel for the private Respondent Nos. 2 to 7 (for brevity ‘the Accused’) and learned APP Ms. Jirga Jhaveri, for the Respondent No. 1 State of Gujarat. Facts of the Case: 3. As per Complaint, the facts of the prosecution case are that at the relevant time, the Complainant Jayesh Thakker was the Manager of original Complainant Partnership firm (D. M. Finance). The Respondent No. 3 to 7 were the Directors of the Respondent no 2 Company Giriraj Proteins Pvt. Ltd. running the business of Protein. They entered into transaction with the Complainant for purchase of Castor Seeds. The Accused had purchased the stock of Castor Seeds and as per the Statement of Account, the Accused paid only Rs. 28,66,677/- and an amount of Rs.41,89,364/- was outstanding. That, the Accused have issued three cheques bearing No.585977 for Rs.3,00,000/-, Cheque No.585979 for Rs.2,00,000/- and Cheque No.585980 for Rs.2,00,000/- drawn on Laxmi Vilas Bank Ltd., Gondal Road, Rajkot towards the part payment. The Complainant has presented these three cheques for realization in the Social co-operative Bank Ltd, Ahmedabad, they were dishonored by the bank with endorsement ‘insufficient funds’. The Complainant issued demand notice dated 10/07/2001 to the Accused. The Accused gave vague reply of the notice and did not pay the amount of unpaid cheques. The Complaint under Section 138 of the NI Act was filed in the Court of the learned trial Court No.12, Ahmedabad against the Accused. The same was registered as Criminal Case No.777 of 2001. 3.1 Before the learned Trial Court, the Accused have denied having committed the offence. The Complaint under Section 138 of the NI Act was filed in the Court of the learned trial Court No.12, Ahmedabad against the Accused. The same was registered as Criminal Case No.777 of 2001. 3.1 Before the learned Trial Court, the Accused have denied having committed the offence. Learned Trial Court has acquitted the Accused vide impugned order dated 30/05/2009. 3.2 The Appellant Complainant has filed the present appeal before this Court which was registered as Criminal Appeal No. 2602 of 2009. This Court, after hearing the learned advocates for the parties, and placing reliance on judgment of case of Nitinbhai Saventilal Shah Vs. Manubhai Nanjibhai Panchal reported in AIR 2011 SC 3076 the order of acquittal passed by the learned Trial Court in Criminal Case No. 777 of 2001 was set aside and case was remanded on 22/02/2012 to the learned Trial Court for denovo trial (retrial) in accordance with law. 3.3 Being aggrieved by the remand order passed by this Court, the Accused had preferred S.L.P. (Cri.) No. 3332 of 2012 (Criminal Appeal No. 2222/ 2014) before the Hon’ble Supreme Court of India. The Hon’ble Supreme Court has after considering the submissions for both the parties, allowed the appeals on 16/10/2014 and remanded the matter back to the High Court in following terms :- Para 59. Thus, in summation, we are of the considered opinion that the exercise of remitting the matter to Trial Court for de novo trial should be done only when the appellate Court is satisfied after thorough scrutiny of records and then recording reason for the same that the trial is not summons trial but summary trial. The non-exhaustive list which may indicate the difference between both modes of trial is framing of charges, recording of statement under sec 313 of the Code, whether trial has been done in the manner prescribed under Sections 262-265 of Cr.P.C, how elaborately evidence has been adduced and taken on record, the length of trial etc. In summary trial, the accused is summoned, his plea is recorded under sec 263 (g) of Cr.P.C. and finding thereof is given by the Trial Court under Section 263 (h) of Cr.P.C. of his examination. 60. The ratio in Nitinbhai must not be followed mechanically to remand matters to trial courts for de novo trial. In summary trial, the accused is summoned, his plea is recorded under sec 263 (g) of Cr.P.C. and finding thereof is given by the Trial Court under Section 263 (h) of Cr.P.C. of his examination. 60. The ratio in Nitinbhai must not be followed mechanically to remand matters to trial courts for de novo trial. There should be proper application of judicial mind and evidence on record must be thoroughly perused before arriving at any conclusion with regard to mode of trial. 63. In the light of the discussion made above, we are of the considered opinion that the High Court failed to appreciate the evidence on record in its true perspective. The High Court erred in arriving at a conclusion that the mode of trial in all these matters was summary trial whereas the record of the trial Court adequately shows that regular trial was undertaken in these matters. Hence, in our considered opinion, the matters are required to be remanded back to the High Court for consideration on merits. We make it clear, that we have not expressed any opinion on the merits of the cases. The High Court should, by conducting an independent inquiry and by reasoned order, dispose of the cases on their own merits as expeditiously as possible, preferably within a period of three months due to the fact that these cases are languishing for almost 14 years. 64. For the foregoing reasons, we allow the appeals, set aside the impugned judgments passed by the High Court and remand the matters to the High Court for consideration on merits. Arguments on behalf of the Appellant– Original Complainant :- 4. Learned advocate for the appellant has argued that the impugned judgment and order passed by the learned Trial Court are absolutely illegal, arbitrary, perverse and against law and evidence on record of the case. The learned Trial Court has erred in not considering the fact that there was ample evidence on the record of the case so as to bring home the conviction of the accused for the offence with which he was charged. The learned Trial Court has not appreciated the oral as well as documentary evidence in proper perspective. 4.1 It further argued that learned Trial Court is bound to presume legal debt under Section 118 and 139 of the NI Act. The learned Trial Court has not appreciated the oral as well as documentary evidence in proper perspective. 4.1 It further argued that learned Trial Court is bound to presume legal debt under Section 118 and 139 of the NI Act. The learned Trial Court has not considered the statement of Accounts at Exh.14 in proper perspective while appreciating of evidence. The Accused has admitted the transaction between the parties. The learned Trial Court has consider the cheques in question are issued for security purpose. That, learned Trial Court has not consider the law laid down by Hon’ble this Court as well as by Hon’ble Apex Court. The learned Trial Court wrongly considered that presumption is rebutted by the accused. In the reply to demand notice Accused have not contended the plea as regards to the cheques were given for security purpose. The Accused at the end of trial examined themselves and denied the case which is not sufficient to rebut the burden lies on them. The learned Advocate for Appellant has requested to allow the appeal and convict the Accused. He relied on certain judgment which will be discussed herein after. Arguments on behalf of the Respondents-Accused : 5. Learned Advocate for the Respondents-Accused argued that the complaint is filed not as owner of the firm, but he is the Manager of the firm. That, in-spite of the Respondent Nos. 2,3 and 6 were not the Directors of the Respondent Company, they are joined as an accused. The owner D.D. Thakkar is competent person has not entered into witness box. That, no notices were issued to all Directors who are joined as an accused. Complaint is defective. No books of accounts were produced to prove the legal debt or other liabilities. There is no explanation that why 3 cheques were issued on the same date. The Complainant has issued the blank cheques for security purpose. There were no cheques in possession of the Accused on 21/07/2001 because the DRT had taken possession of the factory and management of the Respondents Company. The dates mentioned on cheques were filed in without the consent of the accused. Rubber stamp is use for date on cheque. 5.1 It is further argued that the statement of accounts produced at Exh.14 is concocted and falsely prepared. The books of accounts were not produced to establish the legal debt. The dates mentioned on cheques were filed in without the consent of the accused. Rubber stamp is use for date on cheque. 5.1 It is further argued that the statement of accounts produced at Exh.14 is concocted and falsely prepared. The books of accounts were not produced to establish the legal debt. The transaction was not proved in absence of examination of Mehtaji, who has written the accounts. The reply to notice was not considered by the Complainant and filed false complaint. That, transaction were taken place at Bhabhor, District Banaskantha. Therefore the trial court has no jurisdiction to deal with complaint. Arguments on behalf of the Respondent-State: 6 The learned APP has supported the arguments advanced by the learned Advocate the appellant-Complainant. It is submitted considering the facts and circumstances of the case, it appears that the offence is made out. That the appeal is to be allowed and the accused is required to be convicted for the offence punishable u/s.138 of The NI Act. Proceedings before the learned Trial Court: 7. The learned Trial Court has examined the Complainant under Section 200 of the Code and consider documentary evidence produced with the complaint. The learned Trial Court was of the opinion that there is sufficient ground for proceeding, therefore taken cognizance of an offence and issued summons to the accused under section 204 of the code. The complaint was registered as criminal case no.777/2001. 7.1 The accused had appeared through learned advocate and defended the case. Considering Section 143 of the NI Act, the learned Trial Court has recorded the plea of the accused under section 251(1) read with Section 262(1) of the code on 6.11.2001. The accused has not pleaded guilty but claimed for trial. Oral and documentary evidence by Complainant. 8. The Complainant has produced following evidence before learned Trial Court. Sr. Description Exh. Considering Section 143 of the NI Act, the learned Trial Court has recorded the plea of the accused under section 251(1) read with Section 262(1) of the code on 6.11.2001. The accused has not pleaded guilty but claimed for trial. Oral and documentary evidence by Complainant. 8. The Complainant has produced following evidence before learned Trial Court. Sr. Description Exh. 1 Deposition of Complainant Jayeshbhai Chinubhai Thakkar 12 2 Deposition of witness Manaharlal Kantilal 27 3 Authorization letter issued to Complainant to file complaint 13 4 Copy of statement of accounts 1.4.1999 to 31.3.2000 14 5 Original cheque no 585680 15 6 Original cheque no 585679 16 7 Original cheque no 585677 17 8 Return Memo issued by Laxmi Vilas Bank Ltd, Rajkot for Cheque no 585677 18 9 Return Memo issued by Laxmi Vilas Bank Ltd, Rajkot for Cheque no 585679 19 10 Return Memo issued by Laxmi Vilas Bank Ltd, Rajkot for Cheque no 585680 20 11 Original Demand Notice dated 10.7.2001 21 12 Original Register AD window slip 22 13 RPAD Acknowledgment receipt 24 14 RPAD Acknowledgment receipt 25 15 Reply of the demand notice given by the Accused 26 16 Copy of Statement of accounts 1.3.2001 to 31.11.2002 produced by PW 2 clerk of the Bank 28 8.1 Accused have produced following evidence Sr. Description Exh. 1 Deposition of Accused no 3 Bharatkumar Jayantilal Tanna 34 2 Deposition of Accused no 6 Palavesh Pratapray Tanna 35 3 Deposition of witness Ashokkumar Jayantilal Tanna 38 4 Deposition of Accused no 5 Natwarlal Jayantilal Tanna 39 5 Deposition of Accused no 4 Pratapray Jayantilal Tanna 40 6 Certificate of incorporation of Accused no 2 Company 39 7 Subscriber's list of Respondent accused 2 Company 40 8 Form no 32 of Respondent accused 2 Company since incorporation 41 9 Form no 32 of Respondent accused 2 Company since 25.8.2000 42 10 Panchnama of place of Accused Company premises prepared by DRT 59 8.2 After evidence is completed, the matter was kept for further statement. The further statements of the all accused were recorded under section 313 of the code wherein the accused has mostly denied the case of the prosecution and admitted some of the circumstances against him. Thereafter, learned trial court has heard learned advocates for the parties and passed the impugned judgment and order. Ingredients of the offence u/s 138 of NI Act 9. Thereafter, learned trial court has heard learned advocates for the parties and passed the impugned judgment and order. Ingredients of the offence u/s 138 of NI Act 9. Before entering into the merit it would be beneficial to place here, what is to be proved by the Complainant to establish the offence under Section 138 of the NI Act. 9.1 Hon’ble Apex Court has in case of Jugesh Sehgal Vs. Shamsher Singh Gogi reported in AIR 2009 SC Spp. 2022 held that to constitute an offence under Section 138 of the Act, the certain ingredients are required to be fulfilled, which reads as under; “9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice; 10. Being cumulative, it is only when all the afore-mentioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.” 9.2 (2018) 13 SCC 663 N Harihar Krishnan Vs. J. Thomas 23. The scheme of the prosecution in punishing under Section 138 of THE ACT is different from the scheme of the CrPC. Section 138 creates an offence and prescribes punishment. No procedure for the investigation of the offence is contemplated. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. Those ingredients are: (1) that a person drew a cheque on an account maintained by him with the banker; (2) that such a cheque when presented to the bank is returned by the bank unpaid; (3) that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; (4) that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and (5) such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. It is obvious from the scheme of Section 138 that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the Complainant can only assert but not prove, the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. 9.3 From above judgments following ingredients are required to be proved to establish the offence under Section 138 of the NI Act. :- (i) Drawing of cheques by Respondents-accused. 9.3 From above judgments following ingredients are required to be proved to establish the offence under Section 138 of the NI Act. :- (i) Drawing of cheques by Respondents-accused. (ii) Cheques issued for debts or liabilities (iii) Presentation of cheques during validity period (iv) Dishonour on presentation (v) Issuance of notice (vi) Failure of payment of cheques amount Facts admitted by the Respondents-Accused: 10. Considering the complaint, oral as well as documentary evidence produced by both the parties, further statement of the accused, etc. following facts admitted by the Accused :- (a) The Complainant and Accused have entered into the transaction for purchase of Caster seed for the period from 04/06/1999 to 13/07/1999. (b)Three cheques (i) Cheque No. 585977 for Rs.3,00,000/- (ii) Cheque No. 585979 for Rs.2,00,000/- and (iii) Cheque No. 585980 for Rs.2,00,000/- were issued by the Respondent N0.2 Company and they bears signatures of the Directors –accused no 4 Prataprai Jayantilal Tanna. (c) The cheques were issued during October to December 1999 without mentioning dates for security purpose. Defence raised by the Respondents – Accused : 11. (a) The cheques were issued during October to December, 1999. (b) The cheques were issued for security purpose. (c) There were no dates mentioned on the cheques. (d) There is no legal debt between Complainant and accused. (e) There is no transaction between Complainant firm at Ahmedabad with accused. But transaction was between firm situated at Bhabhor District Banaskantha with father of the Complainant. (f) That Accused No. 3 Bharatbhai J. Tanna, Accused No. 6 Palavesh Prataprai Tanna, Accused No.5 Natvarlal Jayantilal Tanna were not the director of Respondent No. 2 Giriraj Proteins Pvt. Ltd. Company. (g) The Accused have no cheque book in 2001. Possession of accused-Company was taken by Debts Recovery Tribunal. (I) - Drawing of cheques by Respondent Accused No. 1 Company. 12. In view of the admitted facts as states above and defence raised by accused, the contents of reply to the notice issued under Section 138 of the N I Act by the Complainant, the below mentioned cheques were issued. Sr Cheque No Amount Date Exh. (I) - Drawing of cheques by Respondent Accused No. 1 Company. 12. In view of the admitted facts as states above and defence raised by accused, the contents of reply to the notice issued under Section 138 of the N I Act by the Complainant, the below mentioned cheques were issued. Sr Cheque No Amount Date Exh. Drawn on 1 585977 3,00,000/- 27.6.2001 Ex 17 Laxmi Vilas Bank Ltd. Rajkot Account no 145 2 585979 2,00,000/- 27.6.2001 Ex 16 3 585980 2,00,000/- 27.6.2001 Ex 15 The Complainant has stated on oath that the above cheques are drawn by the Respondent Company on an account maintained by it with the banker Laxmi Vilas Bank Ltd. Rajkot, Account no 145, for payment of the amount of money mentioned in the cheques to Complainant DM Finance. He has also identified the signature of Mr. Prataprai Tanna, the director of the Respondent Company on the above cheques. The contents of the cheques are proved by the Complainant as per the provision of the Evidence Act. Thus, the Complainant has proved the drawing of three cheques by Respondent Accused No. 1- Company and handed over to the Complainant with the signature of Mr. Prataprai Tanna, the director of Respondent Company. 12.1 The date on the cheques is disputed by the Accused. Such defence is not tenable in view of the ratio laid down by the Hon’ble Supreme Court in case of Bir Singh vs Mukesh Kumar reported in (2019) 4 SCC 197 . 37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, 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 a 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. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. (II) - Cheques issued for debts or liabilities. 13. The next ingredient is ‘Cheques issued for debts or liabilities’. The Complainant has to prove that the cheques have been issued for the discharge, in whole or in part, of any debt or other liability. The evidence as regards to this ingredient will be discussed with the last ingredient i.e. Failure of payment of cheques amount by the Accused. (III) - Presentation of cheques during validity period. 14. The Complainant has produced the original three cheques, Return Memo issued by Laxmi Vilas Bank Ltd, Rajkot for three Cheques, etc at below mentioned exhibit no. and dates. No Exhibit No. of cheque Ex 17 Ex 16 Ex 15 1 Cheque No. 585977 585979 585980 2 Drawn on Bank Laxmi Vilas Bank Ltd, Rajkot 3 Date on cheque 27.6.2001 27.6.2001 27.6.2001 4 Amount 3,00,000/- 2,00,000/- 2,00,000/- 5 Date of presentation 02/07/01 02/07/01 02/07/01 6 Presented in Bank Social co-operative Bank Ltd, Ahmedabad, 7 Date of return 06/07/01 06/07/01 06/07/01 8 Cause of return Insufficient fund Insufficient fund Insufficient fund 9 Exh. No. of Return Memo issued by L.V. Bank Exhibit 18 Exhibit 19 Exhibit 20 10 Validity period Six months from date of cheque ie. 27.12.2001 11 Statement of Bank to deduct charge for return of cheques A Statement at Ex 28 showing An amount of Rs 90 is deducted for each cheque on 4.7.2001by the Social co-operative Bank Ltd, Ahmedabad, 14.1 The accused has admitted in his further statement that the cheques were issued by him. There is no dispute as regards to the signature on the cheque by the drawer. The date 7.6.2001 is mentioned on cheques. There is no dispute as regards to the signature on the cheque by the drawer. The date 7.6.2001 is mentioned on cheques. There is no specific validity period is mentioned on any cheque. Therefore, as per section 138(a) of NI Act, the validity period of six months from the date on which the cheque is drawn is required to be reckoned. In the present case the date mentioned on the cheques is 27.6.2001, therefore, the date of validity of cheques is 27.12.2001. 14.2 It is the say of the Complainant on oath that the cheques were presented by him before the Social Co-Operative Bank Ltd, Ahmedabad and the same are returned by the Laxmi Vilas Bank Ltd, Rajkot with cheque return memo dated 06.7.2001. The cheque return memo are produced at Exhibit Nos. 18,19 and 20 before the learned Trial Court. In all cheques return memo bear with endorsement of ‘insufficient funds’. 14.3 These documents are admissible under Section146 of the NI Act. Section 146. Bank's slip prima facie evidence of certain facts. The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved. There is no dispute about the return of cheques with an endorsement ‘Insufficient Funds’. 14.4 Considering the oral evidence of the Complainant and PW 2 and documentary evidence produced on record it appears that the Complainant has proved that the cheques issued by the accused were presented before the bank within the validity period of the cheques. (IV) - Issuance of Notice 15. The Complainant has produced following documentary evidence before trial court. Sr. Description Date Exh. 1 Date of return of cheque from bank 6.7.2001 18,19, 20 2 Original Demand Notice dated 10.7.2001 10.7.2001 21 3 Original Register AD window slip 10.7.2001 22 4 RPAD Acknowledgment receipt address at Factory 14.7.2001 24 5 RPAD Acknowledgment receipt address at Office 14.7.2001 25 6 Reply of the demand notice given by the Accused 18.7.2001 26 15.1 It is the case of the applicant and also mentioned in the deposition at Exh. 12 that the Complainant has issued notice to the accused through his advocate, which is produced at Exh. 21. He has identified the signature of his advocate on the Notice at Exh. 12 that the Complainant has issued notice to the accused through his advocate, which is produced at Exh. 21. He has identified the signature of his advocate on the Notice at Exh. 21. 15.2 It is further stated that the notice was served through RPAD. Original Register AD window slip is also produced at Exh. No 22. The Complainant has produced RPAD Acknowledgment receipt address to Factory at Exh. 24 and RPAD Acknowledgment receipt address to Office at exhibit 25. Reply of the demand notice given by the Accused is also produced at exhibit 26. There is no disputed that the Complainant has not issued notice and the accused have not received the same. It is also not disputed that the accused has not replied the demand notice. 15.3 Considering the oral evidence of the Complainant and the PW 2 and documentary evidence produced on record, it appears that the Complainant has proved that the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days (before amendment) of the receipt of information by him from the bank regarding the return of the cheque as unpaid. Thus considering the above evidence, it is proved that the payee ie. the Complainant has issued written Demand notice for the cheque amount to the accused within prescribed time limit. Further, the notice is duly served to the Respondent accused and the reply to the notice is also given to the Complainant. (II) - Cheques issued for debt or liabilities. and (V) - Failure of payment of cheque amount. 16. learned advocate for the appellant has argued that the accused Company has issued the three cheques. They have admitted the signature on the cheques. Therefore court has to presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. That on admission of the signature on the cheques, and considering the presumption under the law, the Complainant has discharged his initial burden of proof as regards to the Cheques issued for debt or liabilities. That on admission of the signature on the cheques, and considering the presumption under the law, the Complainant has discharged his initial burden of proof as regards to the Cheques issued for debt or liabilities. It is further submitted that no doubt that the presumption under Section 118 read with section 139 of Negotiable Instruments Act can be rebutted, but for this purpose the accused have to produced cogent evidence. That the accused have not produced cogent evidence to discharged his burden. Learned advocate for the appellant has cited following judgments. 17. learned advocate for the appellant has cited judgment reported in (2019) 4 SCC 197 in case of Bir Singh vs Mukesh Kumar. learned advocate for the appellant has relied upon following Paras; 21. In passing the impugned judgment and order dated 21-11- 2017, the High Court mis-construed Section 139 of Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque. 22. In Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16 ), this Court held that both Section 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras vs. Vaidyanatha Iyer ( AIR 1958 SC 61 ), this Court held that it was obligatory on the Court to raise this presumption. 23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact as held in Hiten P. Dalal (supra). 24. Presumption of innocence is undoubtedly a human right as contended on behalf of the Respondent-accused, relying on the judgments of this Court in Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and Anr (2005) 5 SCC 294 and Rajesh Ranjan Yada @ Pappu Yadav vs. CBI through its Director (2007) 1 SCC 70 . However the guilt may be established by recourse to presumptions in law and presumptions in facts, as observed above. 25. In Laxmi Dyechem vs. State of Gujarat & Ors. (2012) 13 SCC 375 , this Court reiterated that in view of Section 139, it has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption. This Court held however, this presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a post dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. 26. In Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513 , this Court reiterated that there is a presumption that every negotiable instrument duly executed, is for discharge of a debt or liability, but the presumption is rebuttable by proving the contrary. In the facts and circumstances of the case it was found that the cheque in question was towards advance for purchase of carpets, which were in fact not sold by the payee of the cheque to the drawer, as proved from the deposition of an official of the Sales Tax Department, who stated that the payee had admitted that he had not sold the carpets. 27. 27. In K.N. Beena vs. Muniyappan and Another (2001) 8 SCC 458 , this Court held that in view of the provisions of Section 139 of the Negotiable Instruments Act read with Section 118 thereof, the Court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. But mere denial or rebuttal by the accused was not enough. The accused had to prove by cogent evidence that there was no debt or liability. This Court clearly held that the High Court had erroneously set aside the conviction, by proceeding on the basis that denials/averments in the reply of the accused were sufficient to shift the burden of proof on the Complainant to prove that the cheque had been issued for discharge of a debt or a liability. This was an entirely erroneous approach. The accused had to prove in the trial by leading cogent evidence that there was no debt or liability. 36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 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 the Negotiable Instruments Act. 17.1 learned advocate for the appellant has cited judgment of the Supreme Court of India reported in 2020 SCC online SC 193 delivered in case of APS Forex Services Pvt Ltd vs Shakti International Fashion. he has relied upon following Para. Para 15. What is emerging from the material on record is that the issuance of cheque by the accused and the signature of the accused on the said cheque are not disputed by the accused. The accused has also not disputed that there were transactions between the parties. Even as per the statement of the accused, which was recorded at the time of the framing of the charge, he has admitted that some amount was due and payable. However, it was the case on behalf of the accused that the cheque was given by way of security and the same has been misused by the Complainant. Even as per the statement of the accused, which was recorded at the time of the framing of the charge, he has admitted that some amount was due and payable. However, it was the case on behalf of the accused that the cheque was given by way of security and the same has been misused by the Complainant. However, nothing is on record that in the reply to the statutory notice it was the case on behalf of the accused that the cheque was given by way of security. Be that as it may, however, it is required to be noted that earlier the accused issued cheques which came to be dishonoured on the ground of ‘insufficient funds’ and thereafter a fresh consolidated cheque of Rs. Rs.9,55,574/- was given which has been returned unpaid on the ground of “STOP PAYMENT”. Therefore, the cheque in question was issued for the second time. Therefore, once the accused has admitted the issuance of cheque which bears his signature, there is presumption that there exists a legally enforceable debt or liability under Section 139 of the N.I. Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to rebut such presumption. The accused was required to lead evidence that the entire amount due and payable to the Complainant was paid. Para 21 Coming back to the facts in the present case and considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that full amount due and payable to the Complainant has been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured. 17.2 learned advocate for the appellant has cited judgment of the Supreme Court of India reported in AIR 2019 SC 1876 delivered in case of Rohitbhai Jivanlal Patel Vs State of Gujarat. He relied upon Para 12, 14, 18, 19, which reads as under; 12. For determination of the point as to whether the High Court was justified in reversing the judgment and orders of the Trial Court and convicting the appellant for the offence under Section 138 of the NI Act, the basic questions to be addressed to are twofold: as to whether the Complainant-Respondent No. 2 had established the ingredients of Sections 118 and 139 of the NI Act, so as to justify drawing of the presumption envisaged therein; and if so, as to whether the accused-appellant had been able to displace such presumption and to establish a probable defence whereby, the onus would again shift to the Complainant? 14. ...Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the Complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused-appellant to establish a probable defence so as to rebut such a presumption. 18. ...In this regard, significant it is to notice that apart from making certain suggestions in the cross-examination, the accused-appellant has not adduced any documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri Jagdishbhai. 19…..The observations of the Trial Court that there was no documentary evidence to show the source of funds with the Respondent to advance the loan, or that the Respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the Complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the Complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the Complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not. 18. Considering the ratio laid-down by the Apex court in above judgments, the admission of signature on the cheques by the accused, it is to be presumed initially that the cheque has been issued in discharge of a debt or liability. At the same time it is a rebuttable presumption. Now the onus of proving that the cheques were not in discharge of any debt or other liability is on the accused drawer of the cheque. The presumption could be rebutted by adducing evidence. Whether the accused has produce sufficient evidence that is require to be seen the same will be discuss hereinafter. 19. learned advocate for the Accused has argued that the statement of accounts produced at Exh.14 is concocted and falsely prepared. The books of accounts are not produced to establish the legal debt. The Complainant has not examined Mehtaji, who had written the accounts. The transaction was not proved in absence of relevant documentary evidence. The accused have taken defense from beginning that the cheques were issued for security purpose. There was no due as stated by the Complainant. Reply to notice was not considered by the Complainant and filed the false complaint. It is further submitted that the Complainant was asked to produce certain documents to substantiate the legal debt, but he has bluntly refuse to produce the said documents. Therefore adverse inference can be drawn against the Complainant. It is further submitted that when the debt is specifically denied since in reply to the notice u/s 138 of The NI Act. It is the duty of the Complainant to prove the so called transactions. Therefore adverse inference can be drawn against the Complainant. It is further submitted that when the debt is specifically denied since in reply to the notice u/s 138 of The NI Act. It is the duty of the Complainant to prove the so called transactions. That the Accused has not only depend on the cross examination of the Complainant but also they have deposed on oath and also examined witnesses and produce documentary evidence before the trial court. The burden is shifted again on Complainant. He relied upon following judgments. 19.1 Judgment of Hon’ble Supreme Court delivered in case of M.S. Narayana Menon Aias Mani Vs State of Kerala reported in (2006) 6 SCC 39 . He relied on following para 5. At the trial, Respondent No. 2 has examined five witnesses including himself. The Appellant examined three witnesses. Respondent No. 2, however, did not produce the original books of accounts in order to prove the transactions he had with the Appellant. 30. Applying the said definitions of proved or disproved to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the Complainant could be relied upon. 31. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [ (1999) 3 SCC 35 ] albeit in a civil case laid down the law in the following terms: "Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt–" This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence. 32. The standard of proof evidently is pre-ponderance of probabilities. Inference of pre-ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. 33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another. 38. If for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a fortiori even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court. 44. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court. 44. In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay [ AIR 1961 SC 1316 ], Subba Rao, J., as the learned Chief Justice then was, held that while considering the question as to whether burden of proof in terms of Section 118 had been discharged or not, relevant evidence cannot be permitted to be withheld. If a relevant evidence is withheld, the court may draw a presumption to the effect that if the same was produced might have gone unfavourable to the plaintiff. Such a presumption was itself held to be sufficient to rebut the presumption arising under Section 118 of the Act stating: "...Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. We are not concerned here with irrebuttable presumptions of law." 45. Two adverse inferences in the instant case are liable to be drawn against the Second Respondent : (i) He deliberately has not produced his books of accounts. (ii) He had not been maintaining the statutory books of accounts and other registers in terms of the bye-laws of Cochin Stock Exchange. 48. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding. 53. The evidences adduced by the parties before the trial court lead to one conclusion that the Appellant had been able to discharge his initial burden. The burden thereafter shifted to the Second Respondent to prove his case. He failed to do so. 19.2 Learned advocate for the Accused has cited judgment of the this Court reported in 2016 (2) GLH 762 ; delivered in case of Nikhil P Gandhi Vs. State of Gujarat and Ors. He relied on Para 50, 60, 61, which reads as under; 50. In view of the aforesaid discussion, I am of the view that Section 20 of the N.I. Act would not save the situation as such for the accused applicants. State of Gujarat and Ors. He relied on Para 50, 60, 61, which reads as under; 50. In view of the aforesaid discussion, I am of the view that Section 20 of the N.I. Act would not save the situation as such for the accused applicants. The collective reading of the various provisions of the N.I. Act shows that even under the scheme of the N.I. Act, it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and present the same for payment by the drawee. 60. Thus, a cheque may be issued under two circumstances. First, it may be issued for a debt in praesenti, but payable in future. Secondly, it may be issued for a debt which may become payable in future upon the occurrence of a contingent event. The difference in the two kinds of cheques would be that the cheque issued under the first circumstance would be for a debt due, only payment being postponed. The latter cheque would be by way of a security. 61. The word 'due' means 'outstanding at the relevant date'. The debt has to be in existence as a crystallized demand akin to a liquidated damages and not a demand which may or may not come into existence; coming into existence being contingent upon the happening of an event. 20 First of all, generally, it is the duty of the Prosecution to prove his case beyond reasonable doubt. Complainant has produced cheques, notice, acknowledgment receipt and copy of statement of ledger Exh14 and also entered into the witness box for oral evidence. Complainant has to prove only that the cheques are drawn by the accused. Here the signature is admitted, name of party payee and amount on cheques are also admitted by the accused. Therefore, the presumption under Section 118(a) that the cheques were given for consideration is required to be made. Further, the Court has to presumed under Section 139 of the NI Act that unless the contrary is proved, that the holder of the cheque received the cheques of the nature as referred in Section 138 of the NI Act, for the discharge, in whole or part of any debt of liability. Further, the Court has to presumed under Section 139 of the NI Act that unless the contrary is proved, that the holder of the cheque received the cheques of the nature as referred in Section 138 of the NI Act, for the discharge, in whole or part of any debt of liability. 20.1 In the case on hand, considering the admitted facts by the accused, it is not disputed that the cheques were handed over by the Accused to the Complainant firm i.e. D. M. Finance. The signature on cheques are not disputed. Complainant has produced statement of Account at Exh. 14 to show legal debts or liabilities towards dishonoring cheques. Now presumption under Section 118 and 139 of the NI Act come into aid of the Complainant. Considering these evidences, prima facie case is established by the Complainant. The Court has to presume that drawing of the cheques for the consideration and legal debts or other liabilities. At this stage the Complainant has proved the legal debts. Now burden is shifted on Accused to establish his defence. 21. Before dealing with the evidence on record, let us take note of one more judgment on the subject. The Accused may discharge his burden and again shift the burden on the Complainant. For this purpose it will be profitable to refer Apex Court judgment delivered in case of Basalingappa Vsmudibasappa reported in 2019 5 SCC 418 ; para 23. 23. 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 :- (i) 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. (ii) 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. (iii) 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. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) 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. (iv) 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, (v) It is not necessary for the accused to come in the witness box to support his defence. 22. In this case the signature is admitted therefore, the consideration can be presumed that it was given for debt or other liability. But this presumption is subject to unless the contrary is proved. Now the Accused has to rebut this presumption that there was no due amount or there was no debt or other liability. This presumption can be rebutted by the Accused by producing evidence. It is not necessary for the Accused to enter into witness box or to produce documentary evidence. He may rely upon the evidence (Oral and documentary) produced by the Complainant. He may act upon cross examination of the Complainant. He may shift the burden again on the Complainant by using evidences produced by the Complainant. 23. Now the court has to appreciate as to whether the Accused has shifted the burden of proof on the Complainant. The Accused has relied on the following evidence. (A) Cross-Examined the Complainant (B) Accused have entered into witness box to give oral evidence and chosen to avail themselves for cross examination under section 315 of the Code. (C) Accused have also produced Documentary evidence. (A) - Cross-Examination of The Complainant 24. Here in this case learned Advocate for the Accused has cross-examined the Complainant at length. Complainant has admitted in his cross examination that “He has produced copy of ledger at Exh.14. At that time accounts were maintaining manually. Computerized copy is produced. I do not bring the manually maintained original books of accounts. It is copied from original. Our Mehtaji writ e s books of account. My signature is on the last page of Exh 14. At that time accounts were maintaining manually. Computerized copy is produced. I do not bring the manually maintained original books of accounts. It is copied from original. Our Mehtaji writ e s books of account. My signature is on the last page of Exh 14. I do not want to produce original books of account pertains to Exh. 14. I have settled the account with Accused No. 4 Pratapbhai. We have fixed the outstanding amount in person for which I have not taken acknowledgment. I do not know the date on which I have given a copy of ledger. Copy of ledger at Exh. 14 bears bill numbers. Duplicate copies of bills are with me but I do not want to produce them. We keep ledger and inward outward book other than Exh. 14. I do not want to produce that also. I do not want to produce the details mentioned in Lorry receipts and outward book because person of Accused have taken goods. It is true that Exh. 14 statement does not bears name of firm, but it bears my signature and seal. The owner of firm is Dhirubhai Daljitbhai Thakkar. He can do movement and travelling. “D.M. Finance office is situated at Bhabhor. Transaction regards to the account was taken place at Bhabhor. Castor seeds delivery was made at Bhabhor. Dhirubhai runs the administration of D.M. Finance.” 25. Evidence Act section 114 (g) Section 114 Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Evidence Act section 114 (g) Section 114 Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume— (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it :— As to illustration (g)—A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family; 25.1 Supreme Court of India in case of Union Of India vs Ibrahim Uddin & Anr on 17 July, 2012 has held that under which circumstance adverse inference can be drawn against the parties who has not produced the documentary evidence, which reads as under: 6. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. (Vide: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6 ; Hiralal & Ors. v. Badkulal & Ors ., AIR 1953 SC 225 ; A. Raghavamma & Anr. v. A. Chenchamma & Anr., AIR 1964 SC 136 ; The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755 ; Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., AIR 1968 SC 1413 ; M/s. Bharat Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024 ; Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813 ; and Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011) 9 SCC 126 ). 8. v. Union of India & Anr., (2011) 9 SCC 126 ). 8. In Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy & Ors., AIR 2003 SC 3342 , this Court held that all the pros and cons must be examined before drawing an adverse inference against a party. In that case the issue had been, as to whether two persons had been travelling together in the vehicle and presumption had been drawn only on the basis that the bus tickets of both the persons were not produced. This Court held that presumption could not have been drawn if other larger evidence was shown to the contrary. (See also: Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214 ; and Takhaji Hiraji v. Thakore Kubersing Chamansing & Ors., AIR 2001 SC 2328 ). 10. In Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das & Anr., AIR 1967 SC 256 , this Court held that mere withholding of documentary evidence by a party is not enough to draw adverse inference against him. The other party must ask the party in possession of such evidence to produce the same, and in case the party in possession does not produce it, adverse inference may be drawn: “It is true that the defendant-Respondent also did not call upon the plaintiff-appellant to produce the documents whose existence was admitted by one or the other witness of the plaintiff and that therefore, strictly speaking, no inference adverse to the plaintiff can be drawn from his non-producing the list of documents. The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the Respondent. But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favoured the Respondent case.” 12. In Smt. Indira Kaur & Ors. v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074 , the lower courts drew an adverse inference against the appellant- plaintiff on the ground that the plaintiff was not ready and willing to perform his part of the contract. The question arose as to whether the party had the means to pay. The court further held that before the adverse inference is drawn against a particular party, the conduct and diligence of the other party is also to be examined. The question arose as to whether the party had the means to pay. The court further held that before the adverse inference is drawn against a particular party, the conduct and diligence of the other party is also to be examined. Where a person deposed that as he had deposited the money in the Bank and the other party did not even ask as on what date and in which Bank the amount had been deposited and did not remain diligent enough, the question of drawing adverse inference against such a person for not producing the Pass Book etc. cannot be drawn. 16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot loose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court’s order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary. (B) - Accused have entered into witness box and given oral evidence 26. Accused have entered into witness box given evidence under section 315 of the Code. They have given deposition as under. Sr. Description Exh. Such presumption is permissible, if other larger evidence is shown to the contrary. (B) - Accused have entered into witness box and given oral evidence 26. Accused have entered into witness box given evidence under section 315 of the Code. They have given deposition as under. Sr. Description Exh. 1 Deposition of Accused no 3 Bharatkumar Jayantilal Tanna 34 2 Deposition of Accused no 6 Palavesh Pratapray Tanna 35 3 Deposition of witness Ashokkumar Jayantilal Tanna 38 4 Deposition of Accused no 5 Natwarlal Jayantilal Tanna 39 5 Deposition of Accused no 4 Pratapray Jayantilal Tanna 40 26.1 Criminal Procedure code S. 315 Accused person to be competent witness (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that- (a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. (2)… 26.2 Accused no. 3 Bharatkumar Jayantilal Tanna has deposed on oath as D.W. 1 at Exh. 34. He has stated on oath that he was Director in the Respondent accused Company from 1996 to 2000. He has resigned from the Company on 25.08.2000. Thereafter he has not joined the Company as Director again. He was doing supervisory work in machinery department. He do not know the Complainant and he has no knowledge about the transactions with the Complainant. He has produced Form No. 32 from Office of the Registrar of Companies. The Cheques at Exh. Nos. 15, 16 and 17 do not bear his signature. He has been cross examined by the learned advocate for the Complainant. He has denied suggestions made in the cross examination. 26.3 Accused no. 6 Palavesh Prataprai Tanna has deposed on oath as D.W. 2 at Exh. 35. He has stated on oath that he is not Director at present in the Respondent accused Company. He has resigned from the Company since 2000. The Cheques at Exh. Nos. 15, 16 and 17 do not bear his signature. 26.3 Accused no. 6 Palavesh Prataprai Tanna has deposed on oath as D.W. 2 at Exh. 35. He has stated on oath that he is not Director at present in the Respondent accused Company. He has resigned from the Company since 2000. The Cheques at Exh. Nos. 15, 16 and 17 do not bear his signature. He has no personal knowledge about the transactions as stated in the complaint. He has been cross examined by the learned advocate for the Complainant. He has denied suggestions made in the cross examination. 26.4 Accused no. 2 Ashokkumar Jayantilal Tanna has deposed on oath as D.W. 3 at Exh. 38. He has stated on oath that he is not Director at present in the Respondent accused Company. He has resigned from the Company in middle of 2000. He do not know the Complainant and he has no knowledge about the transactions with the Complainant. The Cheques at Exh. Nos. 15, 16 and 17 do not bear his signature. He has been cross examined by the learned advocate for the Complainant. He has denied suggestions made in the cross examination. 26.5 Accused no. 5 Natvarlal Jayantilal Tanna has deposed on oath as D.W. 4 at Exh. 39. He has stated on oath that he is not Director at present in the Respondent accused Company. He do not know the Complainant and he has no knowledge about the transactions with the Complainant. The Cheques at Exh. Nos. 15, 16 and 17 do not bear his signature. He has been cross examined by the learned advocate for the Complainant. He has denied suggestions made in the cross examination. 26.6 Accused no. 4 Pratapray Jayantilal Tanna has deposed on oath as D.W. 5 at Exh. 40. He has stated on oath that he do not know the Complainant Jayeshbhai. He knows Dhirubhai Pujara who is the owner of the D.M. Finance. The firm of the Complainant is situated at Bhabhor. The Complainant was doing business of agricultural products. There was no amount due against Complainant D. M. Finance. He or his firm has not entered in to the transaction with D.M. Finance situated at Ahmedabad. He has issued the three cheques at Exh. Nos. 15, 16 and 17 to the D.M. Finance situated at Bhabhor during October to December 1999. He has not written dates on the cheques in his hand writing. He or his firm has not entered in to the transaction with D.M. Finance situated at Ahmedabad. He has issued the three cheques at Exh. Nos. 15, 16 and 17 to the D.M. Finance situated at Bhabhor during October to December 1999. He has not written dates on the cheques in his hand writing. Such cheques were issued for security purpose. The receiver of DRTA has taken over administrative control with all the records of his Company before the cheques were issued in December 1999. The payment of amount of cheques of security was paid. The Complainant has issued notice and they have replied to that notice. In the reply to notice description of payment is narrated. That the transaction was made with the Dhirubhai at Bhabhort. That the statement at Exh. 14 does not bear his signature or seal of the Respondent Company. The bank has issued the certificate dated 19.06.2004 that the cheques at Exh. Nos. 15, 16 and 17 were issued in the year 1999. The certificate is produced at mark- D. He has never issued cheques for the Complainant Company of Ahmedabad. The Complainant has filed false case against them. The learned advocate for the Complainant has cross examined this witness. Suggestions made in the cross examination are denied. 26.7 Accused have made an application at Exh. 30 to examine Mr. Dhirubhai D. Thakkar who is owner of D.M. Finance, as a court witness, which was rejected by the learned Trial court. Accused has filed another application at Exh.36 to examine (a) acquainted person of office of the Registrar of Companies, (b) Dhirubhai Thakkar, (c) Receiver appointed by the DRT. The said application is rejected for the Dhirubhai Thakkar is concerned. (C) - Accused have produced Documentary evidence. 27. The accused have produced some documentary evidence through Manoj G. Dalal, Junior technical Assistant of Registrar of companies, Gujarat. They are exhibited from 38 to 42 as under. Sr. Description of the document produced by the witness Exh. 1 Certificate of incorporation of Accused no 2 Company 39 2 Subscriber’s list of Respondent accused 2 Company 40 3 Form no 32 of Respondent accused 2 Company since incorporation 41 4 Form no 32 of Respondent accused 2 Company since 25.8.2000 42 Following document produced by the accused. 5 Panchnama of place of Accused Company premises prepared by DRT 59 Above documents at Exh. 5 Panchnama of place of Accused Company premises prepared by DRT 59 Above documents at Exh. 39 to 42 are pertaining to liability of the accused who were not Directors of the Company. Accused has also produced photo copy of the same document but it was not exhibited. Panchnama of place of Accused Company premises prepared by DRT at Exh. 59 is produced to show that the Cheque Book was not in possession of the accused at time of handing over of cheque as stated by the Complainant. 28. The Complainant has examined witness at Exh. 27 Mr. Manharlal Kantilal, who is the clerk of the Social Co-operative Bank Limited, where the account of D.M. Finance, Ahmedabad is maintained. He has produced the statement of account at Exh. 28. He has deposed on oath that the statement at Exh. 28 bears the signature of Umakant accountant of the Bank. 28.1 On perusing the statement of account at Exh. 28, it appears that the statement is given by the Social Co-operative Bank ltd to the DM Finance, Complainant’s Account no 9210 for the period 01.03.2001 to 30.11.2002. Complainant has deposited the disputed cheques in this account. The statement contains only seven entries. The opening balance is Rs. 980/- and closing balance is Rs. 545/-. The withdrawal amount is Rs. 435/-. This statement does not indicate any commercial transactions which shown in the statement of account of D.M. Finance produced at Exh. 14. No explanation is given by the Complainant for such transactions not included in the statement at Exh. 28. No other documentary evidence is produced by the Complainant to substantiate the commercial transaction or debt liabilities of accused. Entries in books of account when relevant:- How to prove? 29. The Complainant has produced copy of statement of ledger at Exh. 14 for the period from 14/06/1999 to 31/03/2001 and 01/04/2001 to 31/03/2002. Wherein it has been shown the active transactions were up to 14/03/2000. Statement of account at Exh.14 not discloses address of Bhabhor or Ahmedabad Branch. No address at all of any firm on this document. As per para 3 of the reply to the notice at Exh.26, Accused has stated that he has done business for the period from 04/06/199 9 to 13/07/1999. It means the Complainant has to prove the transaction for the period from 14/07/1999 to 14/03/2000, which is not admitted by the accused. As per para 3 of the reply to the notice at Exh.26, Accused has stated that he has done business for the period from 04/06/199 9 to 13/07/1999. It means the Complainant has to prove the transaction for the period from 14/07/1999 to 14/03/2000, which is not admitted by the accused. 29.1 To prove the liability of the accused the Complainant has produced only document at Exh. 14. No other document is produced by the Complainant. Is it sufficient to prove the liability of the accused in this case? For this purpose, it will be good to refer Section 34 of the Evidence Act, which reads as under: 29.2 Evidence Act S.34 Entries in books of account when relevant: Entries in books of accounts including those maintained in an electronic form, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. Illustration A sues B for Rs. 1,000, and shows entries in his account-books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt. 29.3 Under this section entries of books accounts regularly kept in the course of business are relevant, but they may not be sufficient by themselves to charge any person with liability. This section provides (a) that entries in books account regularly kept in the course of business are relevant, it is admissible wherever they refer to a matter into which the Court has to inquire. (B) that such entries though admissible are not alone sufficient to charge a person with liability unless corroborated by other evidences. The other evidence may be in form of day book, vouchers, bills, ledger, statement submitted to the Government under the VAT Act, Sales Tax Act, Income Tax Act, etc. 29.4 Date of all three cheques is 27/06/2001. It is stated by the Complainant that he has received the cheques before one day from 27/06/2001 i.e. date of cheque. It is stated by Accused that DRT has taken possession of all records of the Company before 27/06/2001. The receiver has taken possession with all material of the Company. The Panchnama prepared on 17.3.2001 by receiver is produced at Exh.59. It is stated by Accused that DRT has taken possession of all records of the Company before 27/06/2001. The receiver has taken possession with all material of the Company. The Panchnama prepared on 17.3.2001 by receiver is produced at Exh.59. 29.5 The Complainant can still produce oral accounts of contents of document under Section 63 of the Evidence Act, which reads as under: Section 63 of the Evidence Act: Secondary evidence means and includes— (5) Oral accounts of the contents of a document given by some person who has himself seen it. Illustrations ...(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original. 29.6 Considering the oral evidence given by the Complainant more particularly admission made in the cross examination and denied to produce the books of account and other record as regards to the transactions between the parties, the benefit under Section 63 is not helpful to the Complainant. 30. As discussed above, As per para 3 of the reply to the notice at Exh.26, Accused has stated that he has done business for the period from 04/06/1999 to 13/07/1999. The Complainant has produced copy of statement of ledger at Exh. 14 for the period from 14/06/1999 to 31/03/2001 and 01/04/2001 to 31/03/2002. Wherein active transactions are shown upto 14/03/2000. It means the Complainant has to prove the transaction for the period from 14/07/1999 to 14/03/2000, which is not admitted by the accused. Now Accused has cross examined the Complainant, wherein some facts are admitted which are as under :- (a) Books of account were maintained manually but statement of account at Exh. 14 is produced computerized copy. (b) Books of accounts were written by Mehtaji. He is not examined as witnessed by the Complainant. (c) Complainant has denied to produce the books of accounts pertains to copy of statement of ledger at Exh. 14. (d) Copy of ledger bears bill numbers. Duplicate bills are with the Complainant. Complainant has refused to produce such duplicate bills. (e) Firm of the Complainant maintains ledger book and inward outward books other than Exh. 14. Complainant has refused to produce ledger book and inward outward book. (f) Complainant has also refused to produce Lorry receipts and outward register. (d) Copy of ledger bears bill numbers. Duplicate bills are with the Complainant. Complainant has refused to produce such duplicate bills. (e) Firm of the Complainant maintains ledger book and inward outward books other than Exh. 14. Complainant has refused to produce ledger book and inward outward book. (f) Complainant has also refused to produce Lorry receipts and outward register. (g) Though the Dhirubhai D. Thakkar who is owner and administrator of the D.M. Finance and competent to testify, he has not been examined. (h) The main office of the D.M. Finance is situated in Bhabhor. The transactions between the parties have been taken placed at Bhabhor. (I) Complainant has admitted in cross examination at Exh. 12 that he does not know why 3 cheques are issued of the same date. 31. As discussed herein above, I am of the view that initially by virtue of presumption under Section 118(a) and Section 139 of NI Act, the burden to prove the case by the prosecution/Complainant is shifted on the accused. But considering the cross examination of the Complainant more especially the denial of production of certain documents and books of accounts, presumption under Section 114(g) of the Evidence Act; documentary evidence produced by the Complainant more particularly the statement of account at Exh. 14, which is not sufficient under Section 34 of the Evidence Act; the oral as well as documentary evidence produced by the accused; the burden to prove that the cheques was for payment of cheque amount to the Complainant from out of that account for discharge, in whole or in part, of any debt or other liability. Thus, the Complainant has not established the main ingredient i.e. whole or in part, any debt or liability of the accused of the offence punishable under Section 138 of the NI Act. The accused have stated that since reply to the notice they are not liable to pay any amount as suggested by Complainant. If there is no debt question of payment dose not arise. Directors – liabilities, whether notice to director is necessary? 32. One of the argument of the Accused – Respondent is that the Complainant has wrongly joined the accused person though they were not the Director of the Company at the relevant point of time. Keeping in view of the evidence produced before the trial court following facts emerged. Sr. Directors – liabilities, whether notice to director is necessary? 32. One of the argument of the Accused – Respondent is that the Complainant has wrongly joined the accused person though they were not the Director of the Company at the relevant point of time. Keeping in view of the evidence produced before the trial court following facts emerged. Sr. Name of person Joined as Director in notice Exh 21 Joined as Director in complaint Joined as Director in form 32 at Exh 41, 42 1 Prataprai J. Tanna Yes Yes Yes, since inception 2 Ashokkumar J. Tanna Yes Yes Resigned from 25.8.2000 3 Bharatkumar J. Tanna Yes Yes Resigned from 25.8.2000 4 Natwarlal P. Tanna Yes Yes Yes, since inception 5 Alpesh P. Tanna Yes No. No 6 Hemant N. Tanna Yes No. No 7 Vimal N. Tanna Yes No. No 8 Palvesh P. Tanna Yes Resigned from 25.8.2000 33. As per the complaint the date of issuance of cheques was 27.6.2001, it appears that on that day only (1) Prataprai J. Tanna (2) Palvesh P. Tanna were the director of the Respondent Company. the accused have also specifically stated that only (1) Prataprai J. Tanna (2) Palvesh P. Tanna were the director of the Respondent Company. In-spite of this facts other persons were joined as an accused. 34. Learned advocate for the Accused has raised contention that Directors have been not served the notice, therefore complaint is not maintainable. He relied on the judgment of the Supreme Court in case of Himanshu Vs B. Shivamurthi and another reported in 2019 (3) SCC 797 para – 11, 12, 13 which reads as under; Para 10. In the present case, the record before the Court indicates that the cheque was drawn by the appellant for Lakshmi Cement and Ceramics Industries Ltd., as its Director. A notice of demand was served only on the appellant. The complaint was lodged only against the appellant without arraigning the Company as an accused. 12. In the present case, the record before the Court indicates that the cheque was drawn by the appellant for Lakshmi Cement and Ceramics Industries Ltd., as its Director. A notice of demand was served only on the appellant. The complaint was lodged only against the appellant without arraigning the Company as an accused. 12. The provisions of Section 141 postulate that if the person committing an offence under Section 138 is a Company every person, who at the time when the offence was committed was in charge of or was responsible to the Company for the conduct of the business of the Company as well as the Company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. 13. In the absence of the Company being arraigned as an accused, a complaint against the appellant was therefore not maintainable. The appellant had signed the cheque as a Director of the Company and for and on its behalf. Moreover, in the absence of a notice of demand being served on the Company and without compliance with the proviso to Section 138, the High Court was in error in holding that the Company could now be arraigned as an accused. 35. Learned advocate for the Complainant has submitted that Directors have been not served the notice, but the Company has been served the notice. The same is duly served at the address of factory and office, therefore complaint is maintainable. He relied on the judgments of the Supreme Court (A) in case of Bilakchand Gyanchand Co. Vs A. Chinnaswami reported in 1995 (5) SCC 693 para 4 which reads as under 4. In our opinion, the High Court erred in quashing the complaint. It is evident that proceedings were initiated by the appellant against A. Chinnaswami who happened to be the Managing Director of Shakti Spinners Ltd. The cheques in question which were dishonoured were signed by him. The process was issued by the Judicial Magistrate in his name. We see no infirmity in the notice issued under Section 138 addressed to A. Chinnaswami, who was a signatory of the said cheques. The High Court, in our opinion, clearly fell in error in allowing the petition under Section 482 Cr.P.C. and in quashing the complaint & setting aside the proceedings pending before the Judicial Magistrate. We see no infirmity in the notice issued under Section 138 addressed to A. Chinnaswami, who was a signatory of the said cheques. The High Court, in our opinion, clearly fell in error in allowing the petition under Section 482 Cr.P.C. and in quashing the complaint & setting aside the proceedings pending before the Judicial Magistrate. (B) in case of Kirshna Texport & Capital Markets ... vs Ila A Agrawal & Ors reported in (2015) 8 SCC 28 para 9, 15 to 18 which reads as under Para 9. The question, therefore, is whether notice under Section 138 of the Act is mandatorily required to be sent to the directors of a Company before a complaint could be filed against such directors along with the Company. At the outset we must consider whether the decision of this Court in N.K. Wahi (2007) 9 SCC 481 had considered and concluded that it is obligatory to issue separate notices to the Directors in addition to the Company, before initiating any proceedings against them. We have perused the decision and find that no such issue had arisen for consideration in that case. Para 15. With these principles in mind, we now consider the provisions in question. According to Section 138, where any cheque drawn by a person on an account maintained by him is returned by the Bank unpaid for reasons mentioned in said Section such person shall be deemed to have committed an offence. The proviso to the Section stipulates three conditions on the satisfaction of which the offence is said to be completed. The proviso inter alia obliges the payee to make a demand for the payment of said amount of money by giving a notice in writing to “the drawer of the cheque” and if “the drawer of the cheque” fails to make the payment of the said amount within 15 days of the receipt of said notice, the stages stipulated in the proviso stand fulfilled. The notice under Section 138 is required to be given to “the drawer” of the cheque so as to give the drawer an opportunity to make the payment and escape the penal consequences. No other person is contemplated by Section 138 as being entitled to be issued such notice. The plain language of Section 138 is very clear and leaves no room for any doubt or ambiguity. No other person is contemplated by Section 138 as being entitled to be issued such notice. The plain language of Section 138 is very clear and leaves no room for any doubt or ambiguity. There is nothing in Section 138 which may even remotely suggest issuance of notice to anyone other than the drawer. Para 16. Section 141 states that if the person committing an offence under Section 138 is a Company, every director of such Company who was in charge of and responsible to that Company for conduct of its business shall also be deemed to be guilty. The reason for creating vicarious liability is plainly that a juristic entity i.e. a Company would be run by living persons who are in charge of its affairs and who guide the actions of that Company and that if such juristic entity is guilty, those who were so responsible for its affairs and who guided actions of such juristic entity must be held responsible and ought to be proceeded against. Section 141 again does not lay down any requirement that in such eventuality the directors must individually be issued separate notices under Section 138. The persons who are in charge of the affairs of the Company and running its affairs must naturally be aware of the notice of demand under Section 138 of the Act issued to such Company. It is precisely for this reason that no notice is additionally contemplated to be given to such directors. The opportunity to the ‘drawer’ Company is considered good enough for those who are in charge of the affairs of such Company. If it is their case that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, it would be a matter of defence to be considered at the appropriate stage in the trial and certainly not at the stage of notice under Section 138. Para 17. If the requirement that such individual notices to the directors must additionally be given is read into the concerned provisions, it will not only be against the plain meaning and construction of the provision but will make the remedy under Section 138 wholly cumbersome. In a given case the ordinary lapse or negligence on part of the Company could easily be rectified and amends could be made upon receipt of a notice under Section 138 by the Company. In a given case the ordinary lapse or negligence on part of the Company could easily be rectified and amends could be made upon receipt of a notice under Section 138 by the Company. It would be unnecessary at that point to issue notices to all the directors, whose names the payee may not even be aware of at that stage. Under Second proviso to Section 138, the notice of demand has to be made within 30 days of the dishonour of cheque and the third proviso gives 15 days time to the drawer to make the payment of the amount and escape the penal consequences. Under clause (a) of Section 142, the complaint must be filed within one month of the date on which the cause of action arises under the third proviso to Section 138. Thus a complaint can be filed within the aggregate period of seventy five days from the dishonour, by which time a Complainant can gather requisite information as regards names and other details as to who were in charge of and how they were responsible for the affairs of the Company. But if we accept the logic that has weighed with the High Court in the present case, such period gets reduced to 30 days only. Furthermore, unlike proviso to clause (b) of Section 142 of the Act, such period is non-extendable. The summary remedy created for the benefit of a drawee of a dishonoured cheque will thus be rendered completely cumbersome and capable of getting frustrated. Para 18. In our view, Section 138 of the Act does not admit of any necessity or scope for reading into it the requirement that the directors of the Company in question must also be issued individual notices under Section 138 of the Act. Such directors who are in charge of affairs of the Company and responsible for the affairs of the Company would be aware of the receipt of notice by the Company under Section 138. Therefore neither on literal construction nor on the touch stone of purposive construction such requirement could or ought to be read into Section 138 of the Act. 36. Therefore neither on literal construction nor on the touch stone of purposive construction such requirement could or ought to be read into Section 138 of the Act. 36. This Court has considered the arguments advance by the learned advocate of both parties and ratio laid down by the Hon’ble Supreme Court in above referred cases that the issue regarding as to whether notice under Section 138 of the Act is mandatorily required to be sent to the directors of a Company before a complaint could be filed against such directors along with the Company, is no longer res-integra. It is held by the Supreme Court that Section 138 of the Act does not admit of any necessity or scope for reading into the requirement that the directors of the Company in question must also be issued individual notices under Section 138 of the Act. 36.1 Notice to Company is necessary to prosecute for the offences under Section 138 of the NI Act. Where cheque is issued by director of the Company prosecution under Section 138 not maintainable without arraying the Company as accused. Commission of offence by Company is an express condition precedent to attract the vicarious liability of the director. When Company can be prosecuted then only the persons mentioned in the other category could be vicariously liable for the offence. Company cannot subsequently be arraigned as Accused in proceedings under Section 138 of the NI Act. Individual notice to director is not necessary, in-spite of that Directors who are in-charge of the Company and responsible for the administration of the Company would be aware of the receipt of the notice by the Company under Section 138of the NI Act. Here in this case the notice is given to the Company and company is joined as a party in the proceedings, therefore, the argument of the learned advocate for Respondent accused is rejected. Jurisdiction 37 learned advocate for the Accused has argued That the reply to notice was not consider by the Complainant and filed the false complaint. There is no transaction taken place between Complainant firm at Ahmedabad and accused. But transaction was taken place between accused Company with father of the Complainant firm situated at Bhabhor. Therefore, the trial court has no jurisdiction to deal with complaint. There is no transaction taken place between Complainant firm at Ahmedabad and accused. But transaction was taken place between accused Company with father of the Complainant firm situated at Bhabhor. Therefore, the trial court has no jurisdiction to deal with complaint. 37.1 learned advocate for the Complainant has submitted that the Complainant has presented the cheques in the bank account maintained at Ahmedabad. Therefore, the court situated at Ahmedabad has jurisdiction. He relied on the judgments of the Supreme Court (A) in case of Bridgestone India Pvt. Ltd. Vs Inderpal Singh reported in 2016 (2) SCC 75 para 10,11,12 which reads as under 10. In order to overcome the legal position declared by this Court in Dashrath Rupsingh Rathod’s case, learned counsel for the appellant has drawn our attention to the Negotiable Instruments (Amendment) Second Ordinance, 2015 (hereinafter referred to as ‘the Ordinance’). A perusal of Section 1(2) thereof reveals, that the Ordinance would be deemed to have come into force with effect from 15.06.2015. It is therefore pointed out to us, that the Negotiable Instruments (Amendment) Second Ordinance, 2015 is in force. Our attention was then invited to Section 3 thereof, whereby, the original Section 142 of the Negotiable Instruments Act, 1881, came to be amended, and also, Section 4 thereof, whereby, Section 142A was inserted into the Negotiable Instruments Act. Sections 3 and 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015 are being extracted hereunder: “3. In the principal Act, section 142 shall be numbered as subsection (1) thereof and after sub-section (1) as so numbered, the following sub-section shall be inserted, namely :- (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation – For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.” 4. In the principal Act, after section 142, the following section shall be inserted, namely :- 142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Ordinance, as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in sub section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under subsection (2) of section 142 or the case has been transferred to that court under sub section (1), and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of this Ordinance, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that sub section had been in force at all material times.” (Emphasis is ours) A perusal of the amended Section 142(2), extracted above, leaves no room for any doubt, specially in view of the explanation thereunder, that with reference to an offence under Section 138 of the Negotiable Instruments Act, 1881, the place where a cheque is delivered for collection i.e. the branch of the bank of the payee or holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction. 11. It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142A was inserted into the Negotiable Instruments Act. A perusal of Sub-section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, the provisions of the Code of Criminal Procedure, 1973, would have to give way to the provisions of the instant enactment on account of the non-obstante clause in subsection (1) of Section 142A. Likewise, any judgment, decree, order or direction issued by a Court would have no effect insofar as the territorial jurisdiction for initiating proceedings under Section 138 of the Negotiable Instruments Act is concerned. In the above view of the matter, we are satisfied, that the judgment rendered by this Court in Dashrath Rupsingh Rathod’s case would also not non-suit the appellant for the relief claimed. 12. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. In the above view of the matter, we are satisfied, that the judgment rendered by this Court in Dashrath Rupsingh Rathod’s case would also not non-suit the appellant for the relief claimed. 12. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). We are also satisfied, based on Section 142A(1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod’s case, would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case arises. 37.2 On perusing the record of the case the following facts emerged; (a) As per title of the Complainant the address of the firm of the Complainant is at ‘Ahmedabad.’ (b) As per notice at Exh. 21 branch of the Complainant’s firm is situated at ‘Ahmedabad (c) That, the Accused have issued three cheques bearing No. 585977 for Rs.3,00,000/-, Cheque No.585979 for Rs.2,00,000/- and Cheque No.585980 for Rs.2,00,000/- drawn on Laxmi Vilas Bank Ltd., Gondal Road, Rajkot towards the part payment. The Complainant has presented these three cheques for realization in the Social co-operative Bank Ltd , Ahmedabad , they were dishonored by the bank with endorsement ‘insufficient funds’. The Complainant issued demand notice dated 10/07/2001 to the Accused from Ahmedabad. 37.3 in view of the ratio laid down in the judgment referred as above in the Bridgestone India Pvt. Ltd. Vs Inderpal Singh (supra) and the facts that The Complainant has presented these three cheques for realization in the Social co-operative Bank Ltd, Ahmedabad, they were dishonored by the bank with endorsement ‘insufficient funds’ the complaint is maintainable at Ahmedabad. The argument of the learned advocate for the Respondent is not tenable in eye of law. Power of the appellate Court 38. The argument of the learned advocate for the Respondent is not tenable in eye of law. Power of the appellate Court 38. Learned advocate for the accused has cited judgment of the Supreme Court of India reported in 2019 5 SCC 418 ; delivered in case of Basalingappa Vs mudibasappa. 28. ... We fail to see that how the trial court's findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence. This Court had occasion to consider the expression "perverse" in Gamini Bala Koteswara Rao and others Vs. State of Andhra Pradesh through Secretary, (2009) 10 SCC 636 , this Court held that although High Court can reappraise the evidence and conclusions drawn by the trial court but judgment of acquittal can be interfered with only judgment is against the weight of evidence. In Paragraph No.14 following has been held:- "14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so." 39. Learned advocate for the Respondent has relied on the Judgment of Hon’ble Supreme Court delivered in case of M.S. Narayana Menon Aias Mani Vs State of Kerala reported in (2006) 6 SCC 39 . He relied on following paras 54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below. Conclusion: 40. In view of the oral and documentary evidence discussed as above, Arguments advanced by the learned advocates for the parties, ratio laid down in the above referred judgments, the Complainant has initially proved the cheques were drawn by the Accused in aid of presumption under Section 118(a), 139 of the NI Act and shifted on accused. But the Accused has relied upon cross examination of the Complainant, documentary evidence produced by the Complainant and oral and documentary evidence produced on his behalf and shifted the burden again on the Complainant. It appears that legal debt or other liability for the drawer of cheques are not established by the Complainant. The Accused has established that there was no legal debt or liability. The cheques were issued as security purpose and it was misused by the Complainant. The all ingredients of the offence under Section 138 of the NI Act is not proved. This Court is of the view that the learned Trial Court has rightly acquitted the accused. Therefore the appeal filed by the Complainant is required to be dismissed and accordingly dismissed. The judgment and order passed by the learned Metropolitan Magistrate, Court No. 12, Ahmedabad on 30.05.2009 in Criminal Case No. 777 of 2001, is hereby confirmed. No order as to cost. Rule discharged. Appeal dismissed.