JUDGMENT : 1. Being aggrieved by the dismissal of complaint filed under Sec. 200 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short), 1973, for the offence punishable under Sec. 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I.Act' for short), 1881, against the accused, complainant has filed this appeal under Sec. 378(4) of Cr.P.C. 2. After due service of notice, respondent has appeared through counsel. 3. For the sake of convenience, the parties are referred to their ranks before the Trial Court. 4. It is the case of the complainant that he is a business man whereas accused is a Government teacher. They are close friends since for the last few years. In the month of April-2014, accused approached complainant with a request to advance a sum of Rs.5,10,000.00 by way of hand loan to meet his urgent family necessity. Since complainant is having complete trust in the accused and to over come his difficulty, he extended hand loan of Rs.5,10,000.00 to the accused. Accused promise to repay the same within six months. 5. It is further case of the complainant that after six months when accused did not choose to repay the amount, on his repeated request and demand accused issued cheque No.686146 dtd. 9/12/2014 for Rs.5,10,000.00 drawn on State Bank of Hydrabad, Bijapur branch with a request to present the same for collection. When complainant presented the same, it was returned with endorsement "insufficient funds". Inspite of issue and service of legal notice dtd. 26/12/2014 calling upon the accused to pay the amount due under the cheque, accused has not complied with the said request and therefore the complaint. 6. After due service of summons, accused appeared through counsel and contested the case. 7. In support of his case, complainant has examined himself as PW1 and relied upon the Ex.P1 to P5. Through the cross examining of PW1, the accused has got marked one document as Ex.D1. 8. In his statement under Sec. 313 of Cr.PC accused has denied the incriminating evidence against him. He has not chosen to lead evidence on his behalf. 9. After hearing the arguments on both sides, the trial court dismissed the complaint on the ground that the complainant has failed to prove that he had advanced loan of Rs.5,10,000.00 to the accused. In his statement under Sec. 313 of Cr.PC accused has denied the incriminating evidence against him. He has not chosen to lead evidence on his behalf. 9. After hearing the arguments on both sides, the trial court dismissed the complaint on the ground that the complainant has failed to prove that he had advanced loan of Rs.5,10,000.00 to the accused. On the other hand, the accused has proved that the cheque in question was issued by way of security to the land transaction between the complainant and brother of the accused. 10. Being aggrieved by the impugned judgment and order of acquittal, the complainant has filed this appeal on the following grounds. i) In view of presumption under Sec. 118 and 139 of N.I. Act, issue of cheque and dishonor of the same is sufficient to constitute the offence under Sec. 138 of N.I. Act. In the instance case, without any rebuttal evidence by the accused, the trial court has wrongly held that the accused has rebutted the presumption. Therefore, the findings of the trial court is liable to be set aside. ii) The trial court misdirected itself by relying on the statement of the complainant in the cross examination, which is a statement relating to the year 2013 where as the cheque in question was issued on 19/12/2014. Therefore, the admission alone is not sufficient to rebut the presumption available in favour of the complainant. iii) Since the accused has admitted the fact of issue of cheque and his signature, it is necessary to raise a initial presumption in favour of the complainant that the cheque in question was issued towards repayment of any debt or liability. Therefore, the findings of the trial court are perverse and not inconsonance with the provisions of the N.I.Act. iv) The trial court has wrongly casted the burden on the complainant. It has failed to consider the evidence of complainant in its entirety. The trial court has wrongly casted the burden on complainant by relying upon Sec. 101 of Indian Evidence Act. 11. iv) The trial court has wrongly casted the burden on the complainant. It has failed to consider the evidence of complainant in its entirety. The trial court has wrongly casted the burden on complainant by relying upon Sec. 101 of Indian Evidence Act. 11. On the other hand, the learned counsel representing accused has supported the impugned judgment and order and submitted that after the accused has successfully rebutted the presumption arising under Sec. 139 of N.I.Act, the trial court has rightly placed the onus on the complainant to prove that he had the financial capacity to advance Rs.5,10,000.00 to the complainant and in fact he has so advance the said amount and on the failure of the complainant to discharge the onus, the trial court has rightly dismissed the complaint and prays to dismiss the appeal also. 12. Heard the arguments and perused the records. 13. It is not in dispute that complainant and accused are known to each other. It is definite case of the complainant is that to meet urgent family necessity, accused has borrowed a sum of Rs.5,10,000.00 from him promising him to repay the same within six months. After expiry of six months when he did not come forward to repay the said amount, at his insistence accused has issued a cheque which ultimately came to be dishonored on the ground of insufficient funds. Admittedly, accused has not sent any reply to the legal notice. During the course of cross examination of the complainant, accused has set up a defence that complainant has sold agricultural land to the brother of accused and at that time by way of security complainant has issued a blank cheque and after completion of the sale transaction, the said cheque was not returned and misusing the same, complainant has filed the criminal case. The accused has also set up a defence that complainant never had the financial capacity to advance a sum of Rs.5,10,000.00 to the accused and in fact he had no such financial necessity to borrow the said sum from the complainant. In the light of these contentions, it is to be examined whether the trial court has rightly dismissed the complaint and whether it is a fit case calling for interference by this court. 14. In the light of these contentions, it is to be examined whether the trial court has rightly dismissed the complaint and whether it is a fit case calling for interference by this court. 14. Before going to the merits of the case, it is necessary to refer to Sec. 139 of the N.I.Act which deals with the presumption in favour of the holder of a cheque. It reads as under:- "139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in sec. 138 for the discharge, in whole or in part, of any debt or other liability." 15. The reading of Sec. 139 would pose a question as to whether the presumption referred to in Sec. 139 is only with regard to the fact that the cheque in question is issued towards discharge in whole or in part of any debt or other liability or it also includes a presumption regarding the existence of a legally enforceable debt or liability. In the decision reported in 2008 AIR SCW 738 (Supreme Court) in the matter of Krishna Janardhana Bhat V/s Datatraya G. Hegde, it was held that Sec. 139 merely rises a presumption in favour of holder of cheque that same has been issued for discharge of any debt or other liability and existence of legally recoverable debt is not a matter of presumption under Sec. 139 of N.I.Act. However, this controversy was set at rest by the Full Bench of the Hon'ble Supreme Court in the case reported in (2010) 11 SCC 441 in the matter of Rangappa V/s Sri Mohan, wherein it is held that the presumption under Sec. 139 of N.I.Act is not only to the effect that the cheque in question was issued towards discharge in whole or in part of any debt or other liability, but also includes presumption regarding the existence of a legally enforceable debt or liability. 16. In the above discussion, the Hon'ble Supreme Court further held that: "Sec. 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. 16. In the above discussion, the Hon'ble Supreme Court further held that: "Sec. 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Sec. 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Sec. 139 is a divide to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Sec. 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is unsually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge as unduly high standard of proof. The reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Sec. 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." 17. Thus, with both presumptions acting in favour of the complainant, it is to be examined whether the accused has succeeded in rebutting the presumption and thereby shifting the onus on the complainant to prove that he had financial capacity to advance the amount under the cheque and in fact, he has advanced the same to the accused. 18. As already noted, in the complaint, the complainant has stated that accused borrowed a Rs.5,10,000.00 from him to meet his family necessity. However, during the course of his cross examination, complainant who examined as PW1 has deposed that accused borrowed the said amount for purchasing a house. 18. As already noted, in the complaint, the complainant has stated that accused borrowed a Rs.5,10,000.00 from him to meet his family necessity. However, during the course of his cross examination, complainant who examined as PW1 has deposed that accused borrowed the said amount for purchasing a house. Accused has taken up a specific defence that complainant has neither the capacity to advance Rs.5,10,000.00 nor the accused had any such legal necessity to borrow Rs.5,10,000.00 from the accused. Consequently accused has cross examined the complainant as to his financial capacity to lend Rs.5,10,000.00. On this aspect, complainant has stated that he is a real estate agent by profession, but he has not maintained any account regarding his income and expenditure from the said profession. Complainant has also admitted that he has not produce any document to show that at the relevant point of time he had Rs.5,10,000.00 to advance the same to the accused. On this aspect, he has volunteered and stated that he was having money which he has obtained by sale of agricultural land to the brother of accused. In fact accused has produced a photo copy of sale deed by which complainant has sold 1 acre 20 guntas to the brother of accused. It is marked Ex.D1. As evident from this document, the said land was sold a sum of Rs.90,000.00 and the sale transaction is dtd. 11/9/2013. 19. During his cross examination, complainant has admitted that in the sale deed the reason for selling the land is stated to be financial constraint. At page 3 in the last sentence, he has deposed that out of the sale consideration, he has repaid loan of Rs.5,00,000.00 and still he is due to repay some amount. This piece of evidence of the complainant indicates that when he sold agricultural land to the brother of accused, he had some loans to repay and utilizing the amount received through the sale of land he has repaid the portion of the loan. Such being the case, the complainant has failed to prove that out of the sale consideration he has advanced the loan to accused and he had financial capacity to advance Rs.5,10,000.00 to the accused. Such being the case, the complainant has failed to prove that out of the sale consideration he has advanced the loan to accused and he had financial capacity to advance Rs.5,10,000.00 to the accused. During the cross examination of the complainant, the accused has elicited that the deliberations for the sale were held about six months prior to the execution of the sale deed and on account of carrying out survey there was delay. He has admitted that during the sale transaction, he demanded a cheque by way of security and since the brother of the accused was not having a cheque, accused issued the cheque at Ex.P1. The relevant portion reads as under:- 20. However, when suggested that it was a blank cheque, the complaint has stated that it was filled. But, he is unable to state who has filled the cheque, but admitted that it does not bear the hand writing of the accused. In fact in the next para, the complainant admitted that after execution of the sale deed, the brother of accused did not demand return of the cheque. Though he denied that no financial transaction has taken place between him and the accused, in the next sentence, he admitted that since accused is working as teacher he had no necessity to take hand loan from him. Thus, through the cross examination of the complainant, the accused has establish that the complainant had no financial capacity to lend and he had no necessity to borrow Rs.5,10,000.00 from him. On the other hand, he has establish that the cheque in question was issued by way of collateral security at the time of sale transaction that took place between complainant and the brother of the accused. Consequently, the accused has rebutted both presumptions in favour of the complainant. Thereby, the onus is shifted on the complainant to prove his financial capacity and also the necessity of the accused to borrow Rs.5,10,000.00. By not placing any evidence either oral or documentary on record, the complainant has failed to discharge the onus shifted on him. 21. The learned counsel representing the complainant argued that the accused has not stepped into the witness box and thereby has failed to rebut the presumption acting in favour of the complainant. By not placing any evidence either oral or documentary on record, the complainant has failed to discharge the onus shifted on him. 21. The learned counsel representing the complainant argued that the accused has not stepped into the witness box and thereby has failed to rebut the presumption acting in favour of the complainant. As held by the Hon'ble Supreme Court in the matter of Kishan Rao V/s Shankargouda, reported in (2018) 8 SCC 165 in order to rebut the presumption, it is not necessary for the accused to step into the witness box. On the other hand, he has successfully rebutted the presumption, by cross examining the complainant and eliciting admission through him. 22. Taking into consideration, the oral as well as documentary evidence placed on record and in the light of the admissions elicited through the cross-examination of complainant, the trial court has rightly come to the conclusion that the offence punishable under Sec. 138 of N.I.Act is not made out against the accused and dismissed the complaint. Having regard to the facts and circumstances of the case and the oral and documentary evidence placed on record, I am of the considered view that there is no perversity in the conclusions arrived at and this is not a fit case to interfere with the finding arrived at by the Trial Court. 23. In the result, I proceed to pass the following: ORDER The appeal filed by the complainant fails and accordingly it is dismissed.