JUDGMENT 1. The appellant/complainant is challenging the judgment of acquittal passed by Civil Judge & JMFC, Afzalpur in C.C.No.37/2015, dated 27.11.2020 for the offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I. Act'). 2. The parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience. 3. The factual matrix leading to the case of complainant can be stated in nutshell to the effect that the accused was in need of money in the month of September 2014 and approached the complainant for loan of Rs.5,00,000/-. The complainant was not having that much of cash and having only Rs.4,58,000/-. The accused has accepted the said money and gave post dated Cheque dated 22.12.2014 bearing No.73306 drawn on State Bank of India of Afzalpur Branch on the account maintained by him under A/c. No.30658929768. The complainant has presented the said Cheque on 22.12.2014 and the same was bounced for want of sufficient funds in the account. The complainant has issued Demand Notice dated 23.12.2014. The same has been returned on 30.12.2014 with the endorsement that accused has refused to receive the same. The accused has failed to pay the money covered under the Cheque and has also not replied to the notice. The complaint is filed on 23.01.2015. 4. In response to the summons, the accused has appeared through counsel and contested the case. The complainant in order to prove his case relied on the oral evidence of PWs.1 and 2 and the documents as per Exs.P1 to P9. The accused has relied on the evidence of DWs.1 and 2 and the documents as per Exs.D1 and D2. The Trial Court after having heard the arguments of both sides and on perusal of oral and documentary evidence has acquitted the accused from the charge leveled against him for the offence under Section 138 of N.I. Act. 5. The appellant/complainant has challenged the correctness and legality of the said judgment of acquittal contending that issuance of Cheque and signature on it is admitted by the accused and thus complainant has discharged his initial burden of proving that the Cheque in question was issued for lawful discharge of debt. 5. The appellant/complainant has challenged the correctness and legality of the said judgment of acquittal contending that issuance of Cheque and signature on it is admitted by the accused and thus complainant has discharged his initial burden of proving that the Cheque in question was issued for lawful discharge of debt. However, the trial Court has committed error in believing the rebuttal evidence of accused and the finding recorded by the trial Court to displace the presumption available in favour of complainant is erroneous and cannot be legally sustained. The trial Court has committed error that non-mention of date and time about giving loan to accused would create serious doubt about issuance of Cheque by accused would be fatal to the case of complainant. The complainant has specifically pleaded in the complaint averments about the ready cash available with him. However, the trial Court for non-production of Account Statement has erroneously held that complainant has failed to prove the financial capacity to lend the money to accused. The approach and appreciation of oral and documentary evidence by the Trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to convict the accused for the charge leveled against him. 6. In response to the notice of appeal, respondent has appeared through his counsel. 7. The trial Court records have been secured. 8. Heard the arguments of both sides. 9. The appellant/complainant in support of his oral evidence about issuance of Cheque by accused for legally enforceable debt has relied on the Cheque - Ex.P1 dated 20.12.2014 drawn on State Bank of India, near Bus-Stand Afzalpur Branch for Rs. 4,58,000/-. The complainant has presented the said Cheque for collection through his banker. The same was bounced for want of sufficient funds in the account of accused vide bank endorsement - Ex.P2 on 22.12.2014. The complainant has issued demand notice - Ex.P3 dated 23.12.2014. The same is returned with endorsement as addressee refused to receive the same as per Ex.P4. The original notice contained in the said envelop is marked as Ex.P5. The postal acknowledgement - Ex.P6 and postal receipt - Ex.P7 are produced. The complainant has issued demand notice - Ex.P3 dated 23.12.2014. The same is returned with endorsement as addressee refused to receive the same as per Ex.P4. The original notice contained in the said envelop is marked as Ex.P5. The postal acknowledgement - Ex.P6 and postal receipt - Ex.P7 are produced. If the above referred documents are perused and appreciated with the oral testimony of PW1 then it is evident that the complainant has discharged his initial burden of proving the fact that accused has issued the Cheque in question - Ex.P1 for lawful discharge of debt. The Trial Court also has recorded its satisfaction of complainant having discharged his initial burden of proving the fact that the Cheque - Ex.P1 is issued by the accused for lawful discharge of debt. 10. The Trial Court on the basis of there being no specific date mentioned in complaint or in examination-in-chief of PW1 as to when money was given to accused, secondly, the complainant has failed to prove financial capacity, thirdly by accepting rebuttal evidence of accused has recorded finding that complainant has failed to prove the charge leveled against accused. The Trial Court has concluded that the accused by way of rebuttal evidence has probabalized his defence to disprove the initial burden available in favour of the complainant, as a result acquitted the accused for the offence under Section 138 of N.I. Act. 11. The learned counsel for the accused in support of his contention that presumption in terms of Sections 118 and 139 of N.I. Act cannot be extended for lawful discharge of debt relied on the decision of Hon'ble Supreme Court reported in 2008 (4) SCC Page No.54, Krishna Janardhan Bhat vs. Dattatraya G.Hegde, wherein it has been held that Section 139 of N.I. Act merely raises a presumption that the cheque was issued in favour of the holder of cheque and the presumption cannot be extended that it was so issued for lawful discharge of debt or other liability. This decision has been overruled in the subsequent decision reported in (2010) 11 SCC Page No.441, Rangappa vs. Sri Mohan, wherein it has been observed and held that when issuance of Cheque with the signature of accused on the account maintained by him is proved then it will have to be held that initial burden has been discharged that the Cheque in question was issued for lawful discharge of debt. 12. The learned counsel for the accused also relied on the following decisions: i. AIRONLINE 2019 SC 67 - Anss Rajashekar v. Augustus Jeba Ananth. ii. Criminal Appeal No.261/2013 - VIJAY versus LAXMAN & ANR. iii. 2008(6) AIR Kar R 432 - Shiva Murthy versus Amruthraj iv. 2012 CRL. L.J. 1463 (karnataka high court) - M.B. Rajasekhar v. Savithramma v. 2016 ACD 462 (KAR) (KALABURAGI BENCH) - Shankargouda v. Krishan Rao vi. 2020 (3) AKR Page 478 - Gopal Reddy v. Suresh Mahendrakar and Others. I have carefully gone through all these decisions, wherein it has been observed and held that where there is doubt regarding the transaction leading to issuance of Cheque for legally enforceable debt, then the complainant has to prove the said fact. In all the cases referred above there was sufficient material evidence brought on record so as to create reasonable doubt about the source of income in questioning the legally enforceable debt. In view of the decision in Rangappa's case referred above, the contention of the accused that Section 139 of N.I. Act merely raises a presumption about issuance of Cheque in favour of holder of the Cheque and same presumption cannot be extended for discharge of any debt or other liability cannot be legally sustained. 13. The learned counsel for the appellant relied on the latest decision of Hon'ble Supreme Court reported in (2022) 6 Supreme Court Cases 735, Tedhi Singh vs. Narayan Dass Mahant, wherein it has been observed and held that when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. However, the accused has right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely; by examining the witnesses and by producing documents, by pointing out to the material produced by the complainant itself, or through the cross-examination of the complainant. It has been further held that the accused is not expected to discharge an unduly high standard of proof. All which the accused needs to establish is a probable defence. The onus now shifts on the accused to prove by way of rebuttal evidence that the Cheque in question - Ex.P1 was not issued for any lawful discharge of debt. The mere denial that he has not issued the Cheque and not received the notice cannot be said as sufficient rebuttal evidence to disprove the presumption available in favour of complainant. The accused relied on the evidence of DWs.1 and 2 and the documents - Exs.D1 and D2 as rebuttal evidence. It will have to be now appreciated as to whether the said rebuttal evidence is sufficient to dispel the presumption available in favour of the complainant. 14. The brother of accused Ananthkumar is adopted son of complainant about 20 to 30 years back. It is the specific contention of accused that he has issued the Cheque in question - Ex.P1 to the adopted son of complainant Ananthkumar as a security for his cloth business. The complainant is junior uncle of accused and his brother Ananthkumar. The accused apart from his own evidence, relied on the evidence of his own brother Ananthkumar as DW2, who is the adopted son of complainant. DW2 has deposed to the effect that his brother accused has issued the Cheque - Ex.P1 for Rs.4,58,000/- as a security for his business, since he was suppose to give to Pulgam Textile of Solapur. The accused during the course of cross-examination admitted his signature on Ex.P8 -Relinquishment Deed, executed by his brother Ananthkumar. On going through relinquishment deed - Ex.P8 executed by Ananthkumar, it would go to show that Ananthkumar was taken in adoption on 27.05.1992 and by executing Ex.P8 on 06.01.2005 has relinquished his right in the property of the adoptive family. The accused during the course of cross-examination admitted his signature on Ex.P8 -Relinquishment Deed, executed by his brother Ananthkumar. On going through relinquishment deed - Ex.P8 executed by Ananthkumar, it would go to show that Ananthkumar was taken in adoption on 27.05.1992 and by executing Ex.P8 on 06.01.2005 has relinquished his right in the property of the adoptive family. DW2 who is the brother of accused has admitted his signature on Ex.P9 and the signature of his brother, who is accused in the present case. Therefore, from the evidence of DW1 and the documents as per Exs.P8 and P9, it is evident that Ananthkumar has no any concern as adoptive son of complainant or in the family property of his adoptive family. The brother of accused Ananthkumar has chosen to go back to his genitive family and continue to stay in the said family. However, the relation of complainant with Ananthkumar as his junior uncle only remains. 15. The Cheque in question - Ex.P1 is issued in the year 2014. The evidence of DWs.1 and 2 does not disclose the nexus between accused No.1 issuing Cheque - Ex.P1 in favour of complainant as security for the alleged cloth business of his brother DW2, even after his brother Ananthkumar seized to be the adopted son of complainant. The evidence of DWs.1 and 2 also does not disclose as to how the complainant came in possession of the Cheque, which the accused claims to have issued to his brother as a security for cloth business. The documents as per Exs.P8 and P9 which are not disputed by DWs.1 and 2, would go to show that the complainant has sufficient property and source of income. It is true that accused purchased 1 acre 29 guntas of land out of 8 acres 30 guntas in Survey No.352/1 as per Ex.D1 and another land measuring 2 acres 1 gunta out of 7 acres 17 guntas in Survey No.352/2 as per Ex.D2 on 17.08.2013. In the present case, the accused has not elicited anything worth material in the cross-examination of PW1 that he has no financial capacity to lend the money. However, as compared to the lands possessed by complainant in the Relinquishment Deed as per Ex.P8, the mere sale of portion of land referred above to the accused cannot be termed as complainant has no financial capacity to lend the money to accused. However, as compared to the lands possessed by complainant in the Relinquishment Deed as per Ex.P8, the mere sale of portion of land referred above to the accused cannot be termed as complainant has no financial capacity to lend the money to accused. Therefore, looking to the above referred evidence on record, it cannot be concluded that the accused has probablized his defence that he has issued the Cheque as per Ex.P1 to his brother DW2 as a security for cloth business. When the accused has failed to probablize his defence, then it will have to held that the Cheque in question as per Ex.P1 was issued for lawful discharge of debt. 16. The Trial Court has observed and held that the date of which loan was advanced is not mentioned in the complaint and in the examination-in-chief of PW1. The complainant in Para 2 of the complaint has pleaded that the accused has approached him in the month of September 2014 and has given cash of Rs.4,58,000/- which he was in possession at that time, as against the demand of Rs.5,00,000/- by accused. The trial Court has also held that there is no document other then the Cheque to prove the payment of money. The law does not mandate to plead the date of payment of money and any separate document is required to be got executed in support of lending money to the accused. When the issuance of Cheque is admitted in terms of Section 118 of N.I. Act, there is a presumption that consideration under the Cheque is passed to the drawer of the Cheque. The contrary claim, if any, is required to be proved by the person who denies passing of consideration under the Cheque. Therefore, the finding of the trial Court that no date and time when the money was paid and non-execution of document for lending the money would create serious doubt cannot be legally sustained. 17. It is true that Demand Notice - Ex.P3 is not served and the envelop containing the notice as per Ex.P4 returned as addressee not claimed. The accused himself has not challenged the non-service of Demand Notice either during the course of cross-examination of PW1 nor during the course of his evidence before the Court. The accused is residing in the address given in cause-title and the notice is sent to the correct address of the accused. The accused himself has not challenged the non-service of Demand Notice either during the course of cross-examination of PW1 nor during the course of his evidence before the Court. The accused is residing in the address given in cause-title and the notice is sent to the correct address of the accused. The said fact has not been denied by the accused. In this contest it is useful to refer the decision of this Court reported in ILR 2000 KAR 1255 - A. Sathyanarayana vs. C. Nagaraj, wherein it has observed and held that:- "It is found that the notice sent by the registered post to the respondent has been sent to the correct address furnished by the respondent himself in the memorandum of agreement and according to the postal endorsement on the said cover the respondent was not found at the said address on all the seven days on which the notice was taken for service, it is fit case to presume the deemed service of the said notice." In the present case the accused has not denied that he is residing in the address given in causetitle. The demand notice is posted to the correct address of the accused. In view of the principles enunciated in the above referred decision it will have to be held there is deemed service of demand notice to the accused. 18. When the defence of the accused that no any specific date mentioned in the complaint about lending money to the accused and the financial capacity questioned by the accused having found to be legally not sustainable, then it will have to be held that the accused has failed to place rebuttal evidence to dispel the presumption available in favour of the complainant in terms of Sections 118 and 139 of N.I. Act. The complainant having discharged his initial burden of proving the fact that the Cheque in question as per Ex.P1 was issued for lawful discharge of debt, the failure of the accused to place rebuttal evidence or the defence being found to be not legally sustainable in law then it will have to be held that the complainant has proved the charge leveled against the accused for the offence under section 138 of N.I. Act. 19. Now the question remains is imposition of sentence. 19. Now the question remains is imposition of sentence. Looking to the facts and circumstances of the case, if the accused is sentenced to pay fine of Rs. 4,58,000/- in default of payment of fine shall undergo imprisonment for three months is imposed would meet the ends of justice. Consequently, proceed to pass the following: ORDER The appeal filed by the appellant/complainant is hereby allowed. The judgment of acquittal passed by Civil Judge & JMFC, Afzalpur in CC No.37/2015 dated 27.11.2020 is hereby set aside. The accused is convicted for the offence under Section 138 of N.I. Act and sentenced to pay fine of Rs. 4,58,000/- in default of payment of fine shall undergo imprisonment for three months. The Registry is directed to send the copy of judgment and the Trial Court Records to the Trial Court.