ORDER : 1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned. 2. This Criminal Leave to Appeal under Section 378 (4) Cr.P.C. has been preferred claiming the following reliefs: “1. This leave to appeal may kindly be granted and the memo of leave may kindly be treated as memo of appeal. 2. The Judgment dated 28.11.2018 passed by the learned Special Metropolitan Magistrate, NI Act Cases, Pali, in Crl Original Case No.1525/2017 may kindly be set aside and the respondent be convicted for the offence U/s 138 Negotiable Instruments Act as charged by allowing the complaint of the complainant as prayed.” 3. The brief facts of the case as placed before this Court by the learned counsel for the appellant are that the appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) against the respondent No.2 before the learned Court below, when the cheque issued by the respondent No.2, bearing cheque no. 657728, dated 10.2.2017 for a sum of Rs. 9,55,000/- was dishonored by the bank citing insufficiency of funds in the account of the respondent No.2. 4. Learned counsel for the appellant submits that the learned court below has passed the impugned order on the basis of minor contradictions in the statement of the appellant viz. the complainant–appellant has not filed any documents for proof of income, date and year of transaction; whereas it is an admitted fact that the respondent No.2 did not deny his signature over the cheque in question. 5. Learned counsel for the appellant further submits that the learned court below, while passing the impugned order did not consider that the respondent No.2 has given a completely incorrect and different version as regards the factual matrix of the case. And that the complainant-appellant repeatedly stated that the accused respondent made part payments in repayment of his liability to him, and only, issued a cheque to him, towards the final payment to finally discharge himself of the liability towards the complainant-appellant, and that the same was not appreciated by the learned Court below. 6. And that the complainant-appellant repeatedly stated that the accused respondent made part payments in repayment of his liability to him, and only, issued a cheque to him, towards the final payment to finally discharge himself of the liability towards the complainant-appellant, and that the same was not appreciated by the learned Court below. 6. Learned counsel for the appellant thus submits that the learned court below unfairly and incorrectly, vide judgment dated 28.11.2018, acquitted the respondent No.2 of the offence alleged against him, by giving the respondent No.2 the benefit of doubt. 7. Learned counsel for the appellant placed reliance on the following judgments, 7.1 T.P. Murugan (Dead) Thr. Lrs. Vs. Bojan, 2018 (Suppl.) Civil Court Cases 351 (S.C.), relevant portion of which reads as under : “9. The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt. The respondent having admitted that the cheques and Pronote were signed by him, the presumption under S.139 would operate. The respondent failed to rebut the presumption by adducing any cogent or credible evidence. Hence, his defence is rejected. 10. In view of the aforesaid facts and circumstances, the impugned order dated 27.09.2013 passed in Criminal Revision Petition Nos. 1657 and 1658 of 2008 is hereby set aside, and the order of Conviction and Fine passed by the Trial Court is restored. 11. The Appeals are allowed accordingly.” 7.2 K.S. Ranganatha vs. Vittal Shetty, 2022 (1) RCR (Criminal) 445, relevant portion of which reads as under: “11. The position of law as noted above makes it crystal clear that when a cheque is drawn out and is relied upon by the drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the Accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.” 8. On the other hand, learned counsel for the private respondent submits that the learned Court below while passing the impugned judgment has rightly appreciated the facts and circumstances of the case and has followed the relevant judicial pronouncements. 9. Learned counsel for the private respondent placed reliance on the following judgments: 9.1 Triyambak S. Hegde Vs. On the other hand, learned counsel for the private respondent submits that the learned Court below while passing the impugned judgment has rightly appreciated the facts and circumstances of the case and has followed the relevant judicial pronouncements. 9. Learned counsel for the private respondent placed reliance on the following judgments: 9.1 Triyambak S. Hegde Vs. Sripad, (2022) 1 SCC 742 , relevant portion of which reads as under: “The learned counsel for the respondent has however referred to the decision of this Court in Basalingappa v. Mudibasappa, MANU/SC/0502/2019 : (2019) 5 SCC 418 wherein it is held as hereunder: 25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the Accused to rely on evidence led by him or the Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the Accused to come in the witness box to support his defence. 26. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on the cheque having been admitted, a presumption shall be raised Under Section 139 that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the Accused. In cross-examination of PW1, when the specific question was put that cheque was issued in relation to loan of Rs. The question to be looked into is as to whether any probable defence was raised by the Accused. In cross-examination of PW1, when the specific question was put that cheque was issued in relation to loan of Rs. 25,000 taken by the Accused, PW1 said that he does not remember. . . . . . 15. In that light, it is contended that the very materials produced by the Appellant and the answers relating to lack of knowledge of property details by PW-1 in his cross-examination would indicate that the transaction is doubtful and no evidence is tendered to indicate that the amount was paid. In such event, it was not necessary for the Respondent to tender rebuttal evidence but the case put forth would be sufficient to indicate that the Respondent has successfully rebutted the presumption.” 9.2 Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, (2008) 4 SCC 54 , relevant portion of which reads as under : “The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.” 9.3 John K Abraham Vs. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.” 9.3 John K Abraham Vs. Simon Abraham & Anr., (2014) 2 SCC 236 , relevant portion of which reads as under: “7. When we examine the case of the Respondent-complainant as projected before the learned Chief Judicial Magistrate and the material evidence placed before the trial Court, we find that the trial Court had noted certain vital defects in the case of the Respondent-complainant. Such defects noted by the learned Chief Judicial Magistrate were as under: (a) … (b) … (c) In the course of cross-examination, the Respondent stated that the cheque was signed on the date when the payment was made, nevertheless he stated that he was not aware of the date when he paid the sum of Rs. 1,50,000/- (d) … (e) … (f) … 9.. . . . . It has to be stated that in order to draw the presumption under Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.” 9.4 Veena Rani Chhabra Vs. Manju Rohida, 2009 (1) NIJ 271 (Del), relevant portion of which reads as under: “. . . . . Any suspicious circumstance arising in any criminal trial will certainly give advantage to the accused. In the present case, the appellant herself has given two versions-one at the time of pre-summoning evidence and the then at the post-notice stage. Earlier the stand of the appellant was that the cheque was issued by the respondent against advancement of some loan by the appellant and in the post-notice evidence the stand taken for the issuance of the said cheque was on account of some outstanding amount in the Chit Fund which was being operated upon by the appellant. Earlier the stand of the appellant was that the cheque was issued by the respondent against advancement of some loan by the appellant and in the post-notice evidence the stand taken for the issuance of the said cheque was on account of some outstanding amount in the Chit Fund which was being operated upon by the appellant. This inconsistency and contradiction on the part of the appellant has rightly been considered as fatal by the Trial Court and the Trial Court has correctly observed that the complainant is supposed to stand on her own legs than merely Banking upon the admission made by the respondent in her reply dated 18.8.2003. The admission on the part of the respondent in her reply may be of some benefit to the appellant in a civil case but the same cannot help the appellant so far as criminal case is concerned. The appellant thus failed to establish the issuance of the said cheque towards a legally enforceable debt and, therefore, I do not find any infirmity in the order passed by the learned Metropolitan Magistrate. There is no merit in the present appeal, the same is hereby dismissed.” 9.5 Iadayam Investments Vs. M. Ramasamy, 2008 DCR 462, relevant portion of which reads as under: “The learned Counsel for the appellant would contend that under Section 139 of Negotiable Instruments Act when the accused had drawn Ex.P.1-cheque for Rs. 4,35,000/- the presumption should be that the consideration passed. But before taking such a presumption it is the bounden duty of the complainant under Sec.138 of the Negotiable Instruments Act to show that there was a subsisting debt on the date of drawal of the cheque.” 9.6 Navneetdas Narayandas Barshikar Vs. Bacchubhai Mulji Tanna, Proprietor of B.M.T. Industries & Ors. 2012 (1) DCR 16, relevant portion of which reads as under : “In this scenario, it was incumbent upon the complainant to prove and establish beyond reasonable doubt, that there existed legally enforceable debt/liability against the accused, at the time of issuance of disputed cheque in question, and the cheque in question, was issued by the accused to the complainant towards discharge of legally enforceable debt/liability, partly or in whole. However, the complainant has neither produced any cogent legal evidence in that respect, nor produced any accounts, and nor produced any bills/receipts showing the dealing between the complainant and accused in respect of the business transaction pertaining to the disputed cheque in question, and hence, it is crystal clear that the complainant failed to prove and establish beyond reasonable doubt, that at the time of issuance of disputed cheque in question, there existed any legally enforceable debt/liability against the accused and the disputed cheque in question, was issued by the accused to the complainant towards the discharge of said legally enforceable debt/liability, partly or in whole.” 9.7 Santhi Vs. Mary Sherly ILR 2011 (2) NIJ 491 (Ker), relevant portion of which reads as under: “True, the expression, "execution" is not used in Section 138 of the Act. A reading of Section 138 of the Act however, shows that to prove the offence under the said section, prosecution shall inevitably prove that the cheque was "drawn" by accused. The expressions "draw" or "drawn" is not defined in the Act. Section 7 defines "drawer' thus: "maker of a cheque is called the drawer". So, a person who "makes" the cheque is the drawer and the corollary follows that "draw" means, "to make a cheque". As per Oxford Advanced Learner's Dictionary, 7th Edition, the word, "make" means "to create or prepare something by combining materials or putting parts together or to write, create or prepare something". As per Black's Law Dictionary, Eighth Edition, "draw" means, "to create and sign; to prepare and frame (a legal document)". Thus, a person can be said to have "drawn" a cheque, if he has made, prepared or created a "cheque". A cheque is an instrument which is created, in conformity with the requirements of Section 6 read with Section 5 of the Negotiable Instrument Act. . . . . . . . . . .Such "drawing" is also referred to as "execution" as a legal synonym by various courts and the Bar. Therefore, absence of word "execution" in Section 138 is of no consequence. It is also not an excuse not to prove execution/drawing in a prosecution under Section 138 of the Act. The fact that accused has "drawn" the cheque, as stated above can be proved by any known method recognized by law. . . . Therefore, absence of word "execution" in Section 138 is of no consequence. It is also not an excuse not to prove execution/drawing in a prosecution under Section 138 of the Act. The fact that accused has "drawn" the cheque, as stated above can be proved by any known method recognized by law. . . . .The factum of drawing or execution of cheque has to be proved by evidence of person or persons who can vouchsafe for the truth of the facts in issue. It can be proved by direct or circumstantial evidence, which is admissible in law. This proposition will be clear from what Supreme Court stated in Narbada Devi Gupta v. Birendra Kumar Jaiswal, MANU/SC/0862/2003 : (2003) 8 S.C.C. 745 , at page 751: “The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue”. . . . .Ordinarily, execution of a document is established by proving the handwriting and signature in the document, under Section 67 of the Evidence Act. It is primarily proved by examining the person who executed or created the document by writing and signing in the same. When such examination is not possible, execution can be proved by examining a person who saw the document being written and signed. In the absence of direct evidence relating to the writing and signature in the document, execution may be proved by examining a person who is qualified and competent to express his opinion, as to the handwriting and signature, by acquaintance or otherwise. The person who is stated to have received the document, may also establish his acquaintance with the handwriting and signature and his competence to identify the writing and signature of the person who executed the document and thereby prove execution of the document. There are also certain other modes of proof of documents. The evidence of a handwriting expert under Section 45 of the Act may be obtained to prove that the authorship of writing and signature in the document. There are also certain other modes of proof of documents. The evidence of a handwriting expert under Section 45 of the Act may be obtained to prove that the authorship of writing and signature in the document. The court may also reach a conclusion on the authorship of the handwriting and signature by comparison, as envisaged under Section 73 of the Evidence Act. However, the only caution is, the court must be find it safe to act upon such evidence, before it is accepted. In S. Gopal Reddy v. State of A.P. MANU/SC/0550/1996 : (1996) 4 S.C.C. 596 , at page 616, Supreme Court held thus: “The ordinary method of proving a document is by calling as a witness the person who had executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting. There are some other modes of proof of documents also as by comparison of the handwriting as envisaged under Section 73 of the Evidence Act or through the evidence of a handwriting expert under Section 45 of the Act, besides by the admission of the person against whom the document is intended to be used. The receiver of the document, on establishing his acquaintance with the handwriting of the person and competence to identify the writing with which he is familiar, may also prove a document. These modes are legitimate methods of proving documents but before they can be accepted they must bear sufficient strength to carry conviction.” If the complainant has seen the accused making or drawing a cheque, by writing in the cheque and signing the same, as required in Sections 5 and 6 of the Act, such person can give direct evidence relating to such writing and affixure of signature and prove that accused has drawn the cheque. If complainant is not an eye witness to the drawing and if mere is any other eye witness, such witness can be examined to prove drawing of the cheque by accused. In cases in which, there is no eye witness to drawing of cheque, prosecution can adduce circumstantial evidence to prove drawing of cheque by accused. If complainant is not an eye witness to the drawing and if mere is any other eye witness, such witness can be examined to prove drawing of the cheque by accused. In cases in which, there is no eye witness to drawing of cheque, prosecution can adduce circumstantial evidence to prove drawing of cheque by accused. It has also to be borne in mind that there may be cases in which accused would not by himself write in the cheque but, he would have caused the cheque to be filled up by some other person. In such cases, the person who actually wrote in the cheque can be examined to prove that he filled up the cheque, under instruction of accused or at his instance. In cases in which, even such evidence is also not available, prosecution can establish execution/drawing by placing circumstantial evidence either oral or documentary before court, from which, the court can draw an inference whether accused has drawn the cheque or not. The prosecution shall however, make clear to court, each of the circumstance which is relied upon by it, to establish drawing of the cheque by accused. The mere fact that the cheque produced in court came from possession of complainant alone will not be sufficient to prove execution, even though it may be one of the circumstances. No law allows a court to presume that the cheque which is produced and marked in court was handed over or delivered to complainant by accused. The court, at best, can say that the cheque was in possession of complainant. But, under what circumstances it came to his possession is to be stated by complainant. In the absence of such statement, court cannot proceed on any assumption that it was handed over to complainant by accused. At any rate, no universal rule can be laid down, what are the various circumstances to be proved to establish drawing of cheque by accused, in the absence of direct evidence. It depends on facts of each case. The court shall consider whether each of the circumstances is proved by prosecution, as per law and whether those proved circumstances lead to an irresistible conclusion that the cheque was drawn by the accused, as alleged by prosecution. . . . . It depends on facts of each case. The court shall consider whether each of the circumstances is proved by prosecution, as per law and whether those proved circumstances lead to an irresistible conclusion that the cheque was drawn by the accused, as alleged by prosecution. . . . . .If any circumstance or circumstances proved in the case can be explained on any hypothesis which is inconsistent with the assertion of drawing of cheque by accused, accused cannot be said to have drawn the cheque. Whether the cheque was handed over or delivered to complainant by accused and whether it was drawn by accused are independent facts, which require independent proof. The mere production of the cheque in court will not prove either of the above facts. It seems from the records in various appeals involving offence under Section 138 of the Act that most of the complaints do not contain even the relevant facts. Neither the complainant nor the witnesses are made to speak the relevant facts in box. Everything seems to be taken for granted. This case also falls under that category. The cases are often proceeded with, as though mere production of cheque proves all the relevant facts which prosecution must establish in a prosecution under Section 138 of the Act. For a successful prosecution of offence under Section 138 of the Act, complainant must allege and prove that the cheque was "drawn" or executed by the accused. In the absence of an allegation in the complaint that the cheque was drawn by the accused and in the absence of proof of such fact, an accused cannot be convicted for offence under Section 138 of the Act. The Court must be satisfied from the allegations in the complaint and from the evidence adduced that the cheque was made, prepared or created by accused. The court must be convinced that the order in writing which is found in the cheque was made by accused himself or by some other person at the instance of accused or under his instructions. Even if such other person cannot be identified or examined, complainant can still prove execution by circumstantial evidence. There must also be satisfactory evidence to show that accused himself signed the cheque. Then alone, it can be said that accused has drawn the cheque. Even if such other person cannot be identified or examined, complainant can still prove execution by circumstantial evidence. There must also be satisfactory evidence to show that accused himself signed the cheque. Then alone, it can be said that accused has drawn the cheque. In this case, there is no allegation or proof of the fact that the cheque was "drawn" or "executed" by accused. The only fact alleged in complaint and stated in evidence by the sole witness, P.W. 1 is that accused "gave" the cheque to complainant. From such evidence alone, it cannot be concluded that the cheque was "drawn" by accused. The trial court rightly acquitted accused, in the absence of proof of "drawing" of the cheque, which is the most essential ingredient of the offence under Section 138 of the Act.” 9.8 M/s. Shri Ram Transport Finance Co. Ltd. Vs. State of Rajasthan & Anr. (S.B. Crml Leave To Appeal No. 20 / 2017, decided by this Hon’ble Court on 01.08.2017, relevant portion of which reads as under: “Though it is true that as per Section 139 of the N.I. Act, once a cheque held in due course is dishonoured, the burden shifts on to the accused to disprove that he does not owe the debt or liability but inspite thereof, it cannot be denied that the initial and basic task of asserting the bare facts under which the liability to make payment of the cheque arose is upon the complainant as laid down by the Hon’ble Supreme Court in the celebrated judgment of M.S. Narayana Menon @ Mani vs. State of Kerela & Anr. reported in AIR 2006 SC 3366 . . . . .A bald allegation that the accused who advanced the cheque was under an obligation to honour the same is unacceptable. The complainant is required at least to state before the Court that the cheque was received by it against some debt or liability. These facts have to be narrated and proved by way of admissible substantive evidence. If such allegations exist then of course, the rebuttable burden would shift on to the accused to disprove existence of the liability. In the case at hand, all that was mentioned in the complaint was that the accused had taken a loan and that the disputed cheque was advanced for the repayment thereof. If such allegations exist then of course, the rebuttable burden would shift on to the accused to disprove existence of the liability. In the case at hand, all that was mentioned in the complaint was that the accused had taken a loan and that the disputed cheque was advanced for the repayment thereof. Neither the date nor the amount of loan was mentioned in the complaint. The accused denied his liability towards the disputed cheque.. . . . . As discussed above, the complaint as well as the evidence led in support thereof is totally bereft of any particulars whatsoever regarding the alleged loan transaction and thus the complainant’s case lacked the very foundation required to prove existence of liability of the cheque amount against the accused.. . . . On the contrary, in the judgment of M.S. Narayana Menon (supra), the Hon’ble Supreme Court has clearly expounded that when the accused denies the existence of liability even by a preponderance of probability, the burden of proving the facts essential to unfurl the necessary ingredients of the offence under Section 138 of the N.I. Act and the existence of the liability would revert upon the complainant. 10. Heard learned counsel for both parties as well as perused the record of the case and the judgments cited at the Bar. 11. This Court observes that the impugned judgment passed by the learned court below has recorded detailed findings, on the basis of the testimony of witnesses and the evidence placed on the record before it, that it was not established that the cheque in question was drawn by the respondent No.2. And that, the respondent No.2 has brought to the notice of the learned Court below several inconsistencies and inadequacies in the complaint and submissions made by the complainant–appellant. Furthermore, that there was no close relationship between the complainant-appellant and the respondent, as claimed by the complainant-appellant, while contending that the cheque was given to him by the respondent without being duly filled out, and for that very reason, the same was not substantiated with evidence. 12. This Court is also conscious of the catena of judgments rendered by the Hon’ble Apex Court, in Tedhi Singh Vs. Narayan Dass Mahant (Criminal Appeal No. 362 of 2022 decided by the Hon’ble Apex Court on 07.03.2022), K.S. Ranganatha (supra), Triyambak S. Hegde (supra), Sumeti Vij Vs. 12. This Court is also conscious of the catena of judgments rendered by the Hon’ble Apex Court, in Tedhi Singh Vs. Narayan Dass Mahant (Criminal Appeal No. 362 of 2022 decided by the Hon’ble Apex Court on 07.03.2022), K.S. Ranganatha (supra), Triyambak S. Hegde (supra), Sumeti Vij Vs. Paramount Tech Fab Industries reported in AIR 2021 SC 1281 wherein the Hon’ble Court has reiterated; that although a presumption against the drawer of the cheque, i.e. in the favour of the holder of the cheque, that the cheque was drawn for a legally enforceable debt or liability, will exist by virtue of Section 138 of the Negotiable Instruments Act, 1881; in the case that the accused i.e. drawer of the cheque is able to establish a probable defence, the standard of proof for which is the preponderance of probabilities, based on the facts and circumstances of each case, and successfully rebuts the presumption so laid down, then the burden of proof shifts back to the complainant i.e. holder of the cheque. 13. This Court further observes that the learned Court below, vide the impugned judgment, records the relevant facts and circumstances, wherein it was found that the accused respondent did not in fact, give the cheque in question to the complainant appellant, and that the complainant-appellant was a partner in the factory of the accused respondent, and that since the factory was operating in losses, the complainant-appellant acquired the cheque through the office of the accused respondent and misused the same. 14. This Court finds that the learned Court below, after delving into the facts and circumstances of the case, and the materials available on the record before it has recorded the finding, as discussed above, that the accused, i.e. the present private respondent, was able to successfully establish a probable defence, and satisfy the learned Court below to that extent. And further, that the complainant-appellant was unable to substantiate and prove the allegations made by him before the learned Court below. 15. This Court, in light of the above-made observations, finds that the impugned judgment does not suffer from any legal infirmity so as to warrant any interference by this Court. 16. Consequently, the present leave to appeal is dismissed.