JUDGMENT : 1. The present application is preferred by the applicant-original complainant under sub-section (4) of Section 378 of Criminal Procedure Code, 1973, seeking permission of this Court to challenge the order of acquittal dated 14.10.2022 passed by the learned Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vapi in Criminal Case No.2391 of 2018. By the said judgment and order, the learned Magistrate has recorded the order of acquittal of respondent No.1-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for the sake of brevity, it is referred as “the Act”). 2. The brief facts as alleged by the original complainant in the complaint, are re-produced as under: 2.1 The complainant claims to be the sole proprietor of Suraj Road Carrier, who is engaged in the business of road carrier. It is the case of the complainant that he came in contact with respondent No.1-original accused through Om Prakash Shukla and Anurag Shukla. It appears that both the parties were in the business of road carrier. The complainant had shown his interest of purchase of the land. It is contended by the complainant that he along with the accused and her husband and other witnesses had visited the site of the land, which he proposed to purchase. Since the respondent No.1 insisted for token amount of such land dealing, the complainant claims to have handed over the cash of an amount of Rs.2,50,000/- to respondent No.1-accused. 2.2 It is the case of the complainant that the said transaction failed as the original owners of the land showed their unwillingness to sell the land. In such circumstances, the complainant had raised the demand to repay the amount handed over to the accused as a token amount of the said land transaction. The complainant claims to have received cheque bearing No.216152 of an amount of Rs.2,50,000/- handed over to him by the accused on 03.10.2018 of State Bank of India. 2.3 It is further contended in the complainant that the accused had assured to make payment through such cheque as and when, cheque is presented for realization. However, when the complainant deposited the said cheque in the concerned bank, the same was dishonored with endorsement “funds insufficient” on 05.10.2018. 2.3 It is further contended in the complainant that the accused had assured to make payment through such cheque as and when, cheque is presented for realization. However, when the complainant deposited the said cheque in the concerned bank, the same was dishonored with endorsement “funds insufficient” on 05.10.2018. In such circumstances, the complainant was constrained to serve legal notice on the accused raising demand of the repayment of the outstanding amount within a period of 15 days. The complainant claims to have served such notice upon the accused on 10.10.2018. It is further contended that though notice was duly served upon the accused, she chose not to respond to such notice nor repaid amount in dispute. In such circumstances, the complainant was constrained to approach the Court of learned Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vapi, which was registered as Criminal Case No.2391 of 2018 on 26.11.2018. 3. After due verification of the complainant, the learned Magistrate issued summons upon the accused. The said summons were duly served and the accused had appeared before the learned Magistrate, whereby the plea of the accused was recorded and wherein she had categorically denied the alleged transaction with the complainant. 3.1 The learned Magistrate had therefore, proceeded for summary trial of the criminal case. The matter had proceeded for recording the evidence. The complainant had produced mainly four documentary evidence, which includes disputed cheque (Exh.13), bank memorandum slip (Exh.14), notice dated 10.10.2018 (Exh.15) and postal slip (Exh.16). After recording the oral evidence of the complainant in the form of Exh.4, the cross-examination of the complainant was done by the accused. On closing pursis being filed by the complainant, further statement of the accused was recorded under Section 313 of Cr.P.C., wherein, she had denied the case put forward by the complainant and had raised specific defence that the complainant has lodged false case against her. At the end of the statement, no further evidence was laid by the either parties and the matter was finally heard by the learned Magistrate. Upon hearing the respective parties and upon appreciation of the evidence, which has come on record, the learned Magistrate by impugned order dated 14.10.2022 recorded order of acquittal of respondent-original accused for the offencce punishable under Section 138 of the Act. Upon hearing the respective parties and upon appreciation of the evidence, which has come on record, the learned Magistrate by impugned order dated 14.10.2022 recorded order of acquittal of respondent-original accused for the offencce punishable under Section 138 of the Act. Being aggrieved by the same, the present application seeking leave to appeal is filed at the instance of the original complainant. 4. Learned advocate Mr. Hari K. Brahmbhatt has appeared on behalf of the applicant-original complainant before this Court. Time was sought for on behalf of the applicant to place on record the deposition of the complainant along with the relevant documents forming part of the record. Said document along with deposition of the complainant has come on record. 4.1 Learned advocate Mr. Hari K. Brahmbhatt appearing for the applicant has submitted that the learned Magistrate noticing mainly three infirmities has proceeded to pass the impugned order, which are (i) that the original complainant has failed to adduce any written agreement witnessing so called land deal as contended in the complaint, (ii) the trial court has found the case of the complainant suspicious in absence of any evidence being brought on record by the complainant to prove his case beyond reasonable doubt, (iii) the learned Magistrate in background of the aforesaid factors has additionally noticed that the signature in the cheque (Exh.13) is different ink and the contents of the said cheque is in different ink. The learned Magistrate has therefore, recorded the order of acquittal. 4.2 Learned advocate Mr. Hari K. Brahmbhatt appearing for the applicant has relied upon the decision of the Hon’ble Apex Court in the case of Rangappa vs. Mohan reported in 2010 (11) SCC 441 , for the proposition of law with the very fact of failure of accused to reply to the statutory notice given by the complainant, under Section 138 of the N.I. Act, leads to inference that there was merit in the complainant’s version and he therefore, submitted that the learned Magistrate ought to have drawn the presumption in favour of the complainant as provided under Section 139 of the Act with regard to the existence of legally enforceable debt as on the date of presentation of the cheque. He has further relied upon the decision of the Hon’ble Apex Court in the case of T. Vasanthakumar vs. Vijayakumari reported in (2015) 8 SCC 378 . He has further relied upon the decision of the Hon’ble Apex Court in the case of T. Vasanthakumar vs. Vijayakumari reported in (2015) 8 SCC 378 . By relying upon paragraph No.8 of the aforesaid decision, he has submitted that the signature of the cheque being not disputed by the accused. The presumption is mandated by Section 139 of the Act that there exists a legally enforceable debt or liability. He further drew attention of this Court that in the facts of the said case, the court having noticed that merely a printed date on the cheque was found, the High Court committed error, more particularly, in absence of any evidence and has submitted that the High Court had misplaced putting the burden of proof on the complainant. He therefore, has submitted that in the present case, the learned Magistrate ought to have drawn the presumption and the burden of proof was on the accused, which the accused had failed to discharge by leading any cogent material on record. 4.3 Learned advocate Mr. Hari K. Brahmbhatt appearing for the applicant has further relied upon the decision of the Hon’ble Apex Court in the case of Bir Singh vs. Mukesh Kumar reproted in (2019) 4 SCC 197 and has submitted that the Hon’ble Apex Court after taking into consideration various decisions of the Hon’ble Apex Court, had applied meaningful meaning in particular of Sections 20, 87 and 139 of the Act, which clearly provided that a person, who signs the 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 liability. He placed much reliance upon the observation of the Hon’ble Apex Court and has submitted that the Court had further held that it was immaterial that a cheque having 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 of the Act would be attracted. He has also relied upon the decision of the Hon’ble Apex Court in the case of Kalamani Tex and Ors. He has also relied upon the decision of the Hon’ble Apex Court in the case of Kalamani Tex and Ors. vs. P. Balasubramanian reported in (2021) 5 SCC 283 and has submitted that in a given set of facts though the arguments were raised by the appellants that only a blank cheque and signed blank stamp papers were given to the respondents, the Court by referring to the case of Bir Singh (supra) held that statutory presumption cannot be obliterated. He has also relied upon the decision of Hon’ble Apex Court in the case of P. Rasiya vs. Abdul Nazer and Ors. reported in Manu/SC/1521/2022 and has submitted that as per Section 139 of the Act, it shall be presumed, unless the contrary is proved, that the holder of the cheque received the cheque of the nature referred to in Section 138 for discharge in whole or in part, of any debt or other liability. He therefore, has submitted that once the initial burden is discharged by the complainant that the cheque was issued by the accused and the signature and the issuance of cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. 4.4 Lastly, learned advocate Mr. Hari K. Brahmbhatt appearing for the applicant has relied upon the decision of the Hon’ble Apex Court in the case of Jain P. Jose vs. Santosh & Anr. reported in 2022 LiveLaw (SC) 979 and has submitted that in a given set of facts, considering the business relationship existing between the parties, the Hon’ble Apex Court formed an opinion that the defence raised by the appellants does not inspire confidence or meet the standard of “preponderance of probability”. In absence of any other relevant material, the Hon’ble Apex Court set aside the order of the High Court and remitted the matter back to the High Court to decide the appeal on the basis that appellant is entitled to the benefit of presumption under Section 139 of the Act. By referring to the aforesaid decisions of the Hon’ble Apex Court and the law laid down, learned advocate Mr. Hari K. Brahmbhatt appearing for the applicant submits that in the present case, the learned Magistrate at various stages has committed error while interpreting Section 139 of the Act. 5. By referring to the aforesaid decisions of the Hon’ble Apex Court and the law laid down, learned advocate Mr. Hari K. Brahmbhatt appearing for the applicant submits that in the present case, the learned Magistrate at various stages has committed error while interpreting Section 139 of the Act. 5. Learned advocate Mr. Hari K. Brahmbhatt appearing for the applicant has invited attention of this Court to such observations of the learned Magistrate and has submitted that alternatively, the Court may consider this matter to remit it back to the learned Magistrate to decide afresh in light of the correct interpretation of provisions of law. By making the aforesaid submissions, he therefore, urged this Court to grant leave to appeal. 6. This Court upon hearing the learned advocate appearing for the applicant and learned APP Ms. Asmita Patel, who has appeared for the respondent-State, had kept this matter for orders. 7. Having heard learned advocate appearing for the applicant at length, at the outset, the case put forward by the complainant of lending an amount of Rs.2,50,000/- in cash towards of the so called land deal, itself raises a suspicion. The infirmities or lacuna like not giving the details of the land proposed to be purchased by the complainant, the purpose, for which, such land was agreed to be purchased, the source of such huge amount being given in cash to the accused, the story put forward by the complainant of not knowing the respondent No.1 and being introduced by the witnesses namely Om Prakash Shukla and Anurag Shukla and in spite of having met the accused for the land transaction, having given such cash amount to the accused, not giving the details of the name of original owners of the land, put over all claim of the complainant under cloud. The aforesaid suspicion becomes more grave having noticed that both the applicant and the complainant belongs to the same business I.e. engaged in the business of road carrier. However, said suspicion at the outset cannot take away the statutory presumption available under the law in the form of Sections 118 and 139 of the Act. 8. Indisputably, the accused has not denied his signature on the disputed cheque, the accused has not responded to the statutory notice given under Section 138 of the Act. However, said suspicion at the outset cannot take away the statutory presumption available under the law in the form of Sections 118 and 139 of the Act. 8. Indisputably, the accused has not denied his signature on the disputed cheque, the accused has not responded to the statutory notice given under Section 138 of the Act. In my opinion, the learned Magistrate ought to have drawn the presumption in favour of the complainant with regard to cheque drawn towards payment of existence legally enforceable debt. 9. The question thus, which falls for consideration of this Court is whether the learned Magistrate committed error in recording the acquittal on the ground that the complainant had failed to establish his case beyond the reasonable doubt? 10. This Court having noticed the fact that the learned Magistrate has committed error while interpreting Section 139 of the Act in the fact of the case, even after drawing presumption in favour of the complainant in terms of Section 139 of the Act, the accused was under obligation to rebut the presumption raised in favour of the complainant in the form of a probable defence. It is a settled proposition of law that the standard of proof for rebuttal of the presumption drawn under Section 139 of the Act is in the nature of “preponderance of probabilities”. Therefore, even if the accused is able to raise a probable defence, which may create doubt about the existence of the legally enforceable debt or liability as claimed by the complainant, the burden shifts on the complainant to prove his case beyond reasonable doubt by leading cogent material on record. The rebuttal can be in the form of the evidence, which may be brought on record by the accused or even based on the evidence, which has already come on record. 11. In the present case, the complainant had entered the witness box and he was cross-examined by the accused. In his crossexamination, counsel of the accused had successfully brought out various infirmities or lacuna in the claim of the complainant, which has satisfied the criteria of “preponderance of probabilities” raising a probable defence, which in my opinion, the learned Magistrate has rightly accepted. In his crossexamination, counsel of the accused had successfully brought out various infirmities or lacuna in the claim of the complainant, which has satisfied the criteria of “preponderance of probabilities” raising a probable defence, which in my opinion, the learned Magistrate has rightly accepted. The infirmities, which has come out in crossexamination of the complainant questions, the very existence of the alleged land transaction in absence of the intrinsic details like exact date, time and place on which, such amount as claimed by the complainant being handed over to the accused, the details/description of the land, agreed to have been purchased, the details of the names of the original owner of the land, the details as on the date, when the complainant had accompanied the accused with other witness to visit the site of the land. On the contrary, the complainant has admitted that he has not mentioned any exact date on which the accused had handed over him the cheque. He has also admitted that no agreement was reduced in writing and no supporting document has been brought on record. The purpose of the such land transaction has also not come out on record. The complainant has also admitted in his statement that he was unable to give the details of the land and he has not seen the papers of the land, which he agreed to purchase. The complainant has also not brought on record any document to suggest the source of income when he claims to have handed over the huge amount of Rs.2,50,000/- in cash to the accused. 12. It is in light of the aforesaid infirmities, the learned Magistrate has rightly arrived at a finding that no cogent and convincing evidence has been brought on record by the complainant to indicate about existence of legally enforceable debt against the accused. Various decisions relied upon by learned advocate appearing for the applicant lay down the principles of law, which this Court is bound to follow. The decision relied upon in the case of Rangappa vs. Mohan (supra) is concerned, there cannot be any dispute with regard to the proposition of law that the accused having failed to reply to the statutory notice and considering the Section 139 of the Act, the presumption is ought to be drawn in favour of the complainant. 13. The decision relied upon in the case of Rangappa vs. Mohan (supra) is concerned, there cannot be any dispute with regard to the proposition of law that the accused having failed to reply to the statutory notice and considering the Section 139 of the Act, the presumption is ought to be drawn in favour of the complainant. 13. However, in the fact of the said case, the Hon’ble Apex Court noticed that apart from not raising a probable defence, the appellant-accused was unable to contest the very existence of legally enforceable debt or liability. It is in the background of this fact, the Court further proceeded to laid down the aforesaid legal principle. However, in the present case the facts remains that, even after drawing initial presumption as provided under Section 139 of the Act, in the cross-examination of the complainant, the infirmities as recorded earlier has pursued the Court to accept the probable defence raised by the accused. So far as other decisions relied upon by learned advocate appearing for the applicant, the said decisions mainly deals with the principle of presumption to be drawn in favour of the complainant as provided under Section 139 of the Act. Trite would be refer to the decision of Hon’ble Supreme Court in the case of Rangappa vs. Mohan (supra), in which, the Hon’ble Supreme Court has also held that a reverse clause usually imposed an evidentiary burden and not a persuasive burden and when the accused has to rebut presumption under Section 139, the standard of proof for doing so is that of “preponderance of probability”. 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. Even in case of Basalingappa vs. Mudibasappa reported in (2019) 5 SCC 418 , the Hon’ble Supreme Court having analyzed all the concerned provisions has summarized the principles in Para No.25, which reads as under: "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 the 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. 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 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." Thus, the accused may rely upon circumstantial evidence and if the circumstances so relied upon are compelling, which leads to believe that the consideration and debt did not exist or that non existence was so probable that a prudent man would under circumstance of the case, act upon the plea that they did not exist, then the burden may shift again on complainant to prove his case beyond reasonable doubt. 14. For the foregoing reasons, in my opinion, even applying the initial presumption under Section 139 of the Act, the close scrutiny of the cross examination of the complainant, the circumstance which has transpired, has raised serious doubt on the story put forward by the complainant, which has rebutted the presumption drawn in favour of complainant. 15. In such circumstances, the learned Magistrate has rightly shifted burden upon the complainant to prove his case beyond reasonable debt. In absence of any cogent material, more particularly, corroborating the land transaction as alleged by the complainant, the very essential ingredients of legally enforceable debt is not proved. Therefore, present application for leave to appeal fails and stands dismissed. Consequently, criminal appeal also stands dismissed.