JUDGMENT : Birendra Kumar, J. 1. This appeal against acquittal of the sole respondent has been preferred under Section 378(4) Cr.P.C. Leave to appeal was allowed by order dated 29.5.2023. Though, the appellant is a victim of crime, he may have preferred appeal before the Ordinary Court of appeal under the proviso to Section 372 Cr.P.C., however, the appellant chose to approach this Court for leave to appeal and leave has already been granted. This matter is being finally disposed off by this Court. 2. Heard the parties and perused the records. 3. The case and claim of the appellant is that he had advanced Rs.4,39,000/- to the sole respondent and to ensure repayment of the same, the sole respondent had issued cheque no. 626216 on 12.5.2009 of Rs.4,39,000/- (Ex.1). The cheque was presented to the bank and the bank returned it due to “insufficient funds” on 29.05.2009 (Ex.2). Thereafter, legal notice was sent to the sole respondent on 24.6.2009 (Ex.3). A copy of the registered receipts etc. are (Ex.5, Ex.6 and Ex.7). On failure of the sole respondent to pay back the cheque amount, the complaint was filed on 16.7.2009. The complainant examined himself as PW.1 and proved the aforesaid fact through his oral evidence as well as through the documents referred above. 4. The defence of the respondent was/is that appellant was working with him and blank signed cheques were there in office, which was misused by the appellant. This defence is disclosed in the statement under Section 313 Cr.P.C. 5. No evidence has been brought on behalf of the respondent to discharge his burden under Section 139 of the Negotiable Instruments Act. 6. The learned trial Judge took out following points for consideration; whether the sole respondent had issued cheque no. 626216, dated 12.5.2009 of Rs.4,39,000/- against payment of any legal liability. The learned trial Judge concluded that the cheque was of the bank account of the accused/respondent and his signature was there on the cheque, therefore, the burden is on the accused to establish as to under what circumstances cheque travelled to the appellant. Point no. 2 was whether the cheque bounced for insufficiency of funds. The next point was whether notice was sent within 30 days of dishonour of cheque. Point no. 2 was whether the cheque bounced for insufficiency of funds. The next point was whether notice was sent within 30 days of dishonour of cheque. Another point was whether the accused failed to pay back the cheque amount within 15 days of receipt of notice and whether the complaint was filed within time. It appears that all these points were taken together by the learned trial Judge. Learned trial Judge on consideration of evidence came to the conclusion that the appellant had capacity to pay the referred amount to the accused. Learned trial Judge concluded that the accused/respondent failed to discharge his burden under Section 139 of the Negotiable Instruments Act. 7. However, the learned trial Court considered certain evidences irrelevant for the purpose of deciding whether offence under Section 138 of the Negotiable Instruments Act is made out or not. Learned trial court took into notice deposition of PW.1 that there was a written agreement between the parties in respect of loan advanced and the cheque was issued for principal as well as interest of the loan amount. The said documents were not produced before the Court inspite of undertaking by the appellant. Hence, adverse inference would be drawn. Learned trial Court further noticed that the complainant had not stated anything in the complaint petition regarding interest payable on the money advanced to the accused/respondent. For the aforesaid reason, according to the trial Judge, the accused succeeded in discharging his burden under Section 139 of the Negotiable Instruments Act. 8. Learned counsel for the appellant contends that the learned trial Judge has travelled beyond the scope of requirement to prove charge under Section 138 of the Negotiable Instruments Act. Infact, the appellant had proved the requirements of under Section 138 of the Negotiable Instruments Act. The sole respondent has admitted his signature on the cheque, therefore, it was burden of the sole respondent to prove that the cheque was not issued for payment of existing dues, which the accused has failed in the facts and circumstances of this case. Only for some minor discrepancy, the prosecution case should not have been disbelieved. 9. Learned counsel for the respondent contends that since the complainant did not produce documents regarding his lands to establish that he had income to such extent to make him capable to pay in cash, such a huge amount. Only for some minor discrepancy, the prosecution case should not have been disbelieved. 9. Learned counsel for the respondent contends that since the complainant did not produce documents regarding his lands to establish that he had income to such extent to make him capable to pay in cash, such a huge amount. The learned trial Judge has rightly held that it is complainant’s case that an agreement of loan was there between the parties but the said document was not produced before the Court. Learned counsel for the complainant has relied upon the judgment of Hon’ble Supreme Court in Vijay Vs. Laxman & Anr. reported in 2013 Cr.L.R. (SC) 277. 10. The provisions of Section 138 and 139 of the Negotiable Instruments Act are being reproduced below:- “138. Learned counsel for the complainant has relied upon the judgment of Hon’ble Supreme Court in Vijay Vs. Laxman & Anr. reported in 2013 Cr.L.R. (SC) 277. 10. The provisions of Section 138 and 139 of the Negotiable Instruments Act are being reproduced below:- “138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 4 [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the 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; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, 5 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.” “139. Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.” “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 Section 138 for the discharge, in whole or in part, of any debt or other liability.” 11. The aforesaid provision was considered in Rajesh Jain vs. Ajay Singh, reported in AIR 2023 SC 5018 , wherein the Hon’ble Supreme Court decided the requirement to prove the offence under Section 138 of the Negotiable Instrument Act as follows:- “26. In Gimpex Private Limited vs. Manoj Goel, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure: (i) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account; (ii) The cheque being drawn for the discharge in whole or in part of any debt or other liability; (iii) Presentation of the cheque to the bank arranged to be paid from that account, (iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount (v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and (vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.” Hon’ble Supreme Court has further held in Para-27 & 28 as follows:- 27. In K. Bhaskaran v. Sankaran Vaidhyan Balan this Court had summarised the constituent elements of the offence in fairly similar terms by holding: “14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. In K. Bhaskaran v. Sankaran Vaidhyan Balan this Court had summarised the constituent elements of the offence in fairly similar terms by holding: “14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice.” 28. The five (5) acts as set out in K. Bhaskaran’s case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex’s case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.” Further, in paras 35, 36, 37 and 38, the Court observed as follows:- “35. Section 139 of the NI Act, which takes the form of a ‘shall presume’ clause is illustrative of a presumption of law. Because Section 139 requires that the Court ‘shall presume’ the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. The rules discussed hereinbelow is common to both the presumptions under Section 139 and Section 118 and is hence, not repeated-Reference to one can be taken as reference to another. The rules discussed hereinbelow is common to both the presumptions under Section 139 and Section 118 and is hence, not repeated-Reference to one can be taken as reference to another. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase ‘unless the contrary is proved’. 36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [ (1999) 3 SCC 35 ] 37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar]. Therefore, mere admission of the drawer's signature, without admitting the execution of (2019) 4 SCC 197 the entire contents in the cheque, is now sufficient to trigger the presumption. 38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.” Evidently, in the case on hand, the prosecution discharged its burden to prove the requirement of Section 138 of the Negotiable Instruments Act. The sole respondent admitted that his signed cheques were misused. However, no evidence was led to prove this fact, therefore, presumption would be there in favour of the complainant that the cheque was issued by the accused for payment of the existing dues. 12. The sole respondent admitted that his signed cheques were misused. However, no evidence was led to prove this fact, therefore, presumption would be there in favour of the complainant that the cheque was issued by the accused for payment of the existing dues. 12. In view of the settled propositions aforesaid, the trial court has wrongly relied on some of the lapses on the part of the complainant to disbelieve that the complainant proved the cheque under Section 138 of the Negotiable Instruments Act and wrongly held that the accused has already discharged its burden under Section 139 of the Negotiable Instruments Act only for certain lapses of the complainant. This case is squarely covered by the dictum in Rajesh’s case (supra). Hence, judgment relied upon by the learned counsel for the respondent is not applicable in the facts and circumstances of this case. 13. In the result, the judgment of acquittal dated 24.8.2022 passed in Criminal Case No. 258/2016 by learned Special Metropolitan Magistrate, NI Act, Jodhpur stands hereby set aside and the sole respondent is convicted for the offence under Section 138 of the Negotiable Instruments Act. 14. Heard the parties on sentence. 15. Considering the mitigating and aggravating circumstances appearing in this case as well as the fact that no previous conviction is there against the sole respondent, 2 months simple imprisonment is awarded alongwith fine of the cheque amount plus 30% of the same as compensation to be payable within a month, failing which, the said amount would be recoverable according to law prescribed for recovery of fine. 16. Bail bond of the sole respondent is hereby cancelled. He is directed to surrender within one month. 17. This criminal appeal stands allowed, accordingly.