JUDGMENT ON BOARD : Heard. 1. The present revision is against the judgment dated 21/09/2021 passed by the Sessions Judge, Dhamtari whereby the appeal bearing number 23/2020 against the conviction under Section 138 of the Negotiable Instruments Act was dismissed. 2. The complainant/respondent Kailash Kukreja states that a promissory note was executed by the applicant/accused of Rs.12,50,000/- on 27/07/2014 (Ex.P-1) and in order to liquidate the debt, subsequently a cheque was issued on 30/10/2014 for Rs.12,50,000/- in favour of Kailash Kukreja. The cheque was dishonored for the reason that the account did not have sufficient fund. Consequently, statutory notice was issued on 5/11/2014 which was received by the applicant on 8/11/2014. Despite that, the applicant did not discharge his dues. Thereafter, complaint was filed under Section 138 of the Negotiable Instruments Act. The learned Judicial Magistrate after the trial, sentenced the applicant/accused for one year rigorous imprisonment and damages were ordered for Rs.12,50,000/-, and in lieu of non-payment, two months further simple imprisonment was ordered for. The said judgment having been subject of challenge before the appellate court, the appellate court by its order dated 21/09/2021 has affirmed the finding of the learned Judicial Magistrate. Hence, this revision. 3. Learned counsel for the applicant would submit that with respect to the amount of Rs.12,50,000/-, the applicant never transacted with the present respondent instead certain monetary transaction was there with one Kanhaiya Lal Kamrani. The Kanhaiya Lal Kamrani handed over the said blank promissory note to the applicant along with the blank cheque which was used by the complainant. He would further submit that both the learned court below came to a perverse finding as they failed to see the returns which were of the income tax department from Ex.D-3 to Ex.D-12 as the money was said to have been received from the different family members but they did not have the cash in hand with them. He would therefore submit that the finding being perverse, is liable to be set aside. 4. Per contra, learned counsel for the respondent would submit that it is not necessary that the source of income has to be disclosed. He placed his reliance in 2022 SCC OnLine SC 1131 in between P. Rasiya Vs. Abdul Nazer & Anr. He would therefore submit that the finding being perverse, is liable to be set aside. 4. Per contra, learned counsel for the respondent would submit that it is not necessary that the source of income has to be disclosed. He placed his reliance in 2022 SCC OnLine SC 1131 in between P. Rasiya Vs. Abdul Nazer & Anr. and would submit that in the said case, the Supreme Court has laid down that the presumption of Section 139 of the Negotiable Instruments Act would follow and consequently the presumption as has been drawn by both the court below is based on concurrent finding of fact, which do not require any interference. He further relies on (2015) 3 SCC 123 in between Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke & ors. 5. I have heard the learned counsel for the parties and perused the original documents and the statements. 6. The perusal of the record would show that Ex.P-1 was a promissory note issued on 27/07/2014 for Rs.12,50,000/-. According to the complainant, in lieu of the discharge of the certain debt, a cheque was issued Ex.P-2 on 30/10/2014 which got dishonored for want of sufficient fund by Ex.P-3 and thereafter statutory notice was issued on 5/11/2014 by Ex.P-4. Receipt of the said notice is also not in dispute. Perusal of the statement of the complainant Kailash Kukreja would show that he made a statement that he knows the respondent and in the cross-examination when he was suggested about the name of Kanhaiya Kamrani, Nutandas Kamrani, Disha Kamrani and Reshma Kamrani it was stated that they stay near their house and they are known to him. According to the complainant, Rs.12,50,000/- was paid in cash to the applicant and it was entered in promissory note by the accused himself. The statement would show that he holds an account in the State Bank of India, Dhamtari and HDFC Bank, Dhamtari. In 2014 he was holding an account with HDFC Bank Dhamtari. The complainant affirms the fact that he had not withdrawn any amount of Rs.12,50,000/- from his bank, therefore the fact that the amount was paid in cash was the source becomes an issue. The statement would further show that the said amount was borrowed in turn from his wife, brother, brother's wife and were collected and were paid to the accused. The statement would further show that the said amount was borrowed in turn from his wife, brother, brother's wife and were collected and were paid to the accused. In a bifurcation of the amount, he states that the amount was in his house, Rs.2,50,000/- was paid by him, his wife had paid Rs.2,50,000/- and Rs.7,50,000/- was given by his brother which was of the joint family. He further admits that in 2014 all were accessible to the Income Tax and were filing their return. The suggestion was given that cheque was not given to him was denied. The cross-examination would further show that when the source of income was asked, it was stated that his wife earns the amount from stitching. He has not filed the other documents with respect to the bank documents of the other family members. Therefore, the entire statement would show that the transaction of the amount was in cash. 7. In order to rebut that, the accused has placed on record the income tax return of Richa Kukreja, Ashok Kukreja, Rajesh Kukreja, Kailash Kukreja and Chandardas Kukreja of the year 2013-2014 and 2014-2015, the period on which the said transaction was entered into. 8. Perusal of the income tax return do not show the cash in hand was shown in such return. The reliance placed by the respondent in the case of P. Rasiya (supra) speaks that the presumption under Section 139 of the N.I. Act shall be drawn unless contrary is proved, that the holder of a 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. When the specific case of the respondent was that amount was given as a cash transaction, at the same time amount of loan of Rs.12,50,000/- cannot be said to be a meager one. The Supreme Court in the recent judgment in (2023) 10 SCC 148 in between Rajesh Jain vs. Ajay Singh has discussed the effect of Section 138 of the N.I. Act. In the case of Rajesh Jain (supra) after taking note of law laid down in case of K. Bhaskaran Vs. The Supreme Court in the recent judgment in (2023) 10 SCC 148 in between Rajesh Jain vs. Ajay Singh has discussed the effect of Section 138 of the N.I. Act. In the case of Rajesh Jain (supra) after taking note of law laid down in case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan reported in (1999) 7 SCC 510 which spells out five constituent elements of 138 of NI Act which are established generally from record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. However, in Gimpex (P) Ltd. v. Manoj Goel reported in (2022) 11 SCC 705 has laid down a additional requirement to prove that cheque was issued in discharge of debt or liability. It further held that the burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. 9. However, through the introduction of a presumptive device in Section 139 of the NI Act, 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 the cheque was not issued in discharge of a debt/liability. The Court further held that 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. In the instant case in hand, the drawer of the cheque denies the issuance of promissory note or the cheque to say that it was in discharge of the debt. 10. The Supreme Court while discussing the issue in such case further held that in other words, the accused is left with two options. The first option of proving that the debt/liability does not exist is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. 10. The Supreme Court while discussing the issue in such case further held that in other words, the accused is left with two options. The first option of proving that the debt/liability does not exist is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty-one to forty-nine and arising out of the entire circumstances of this case, which includes: the complainant’s version in the original complaint, the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his Section 313 Cr.P.C statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was no debt/liability. The Supreme Court relied on the case of Kumar Exports Vs. Sharma Carpets reported in (2009) 2 SCC 513 . 11. The Court further held that the accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. In the case of Kundan Lal Rallaram v. Custodian (Evacuee Property) reported in 1961 SCC Online SC 10 when the creditor failed to produce his account book, the court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, the case was dealing with the presumptive value of section 118 of NI Act, since the nature of the presumptive clauses in sections 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well. 12. Therefore, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand or from the evidence, the burden shifts to the complainant and the presumption disappears and does not haunt the accused any longer. 12. Therefore, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand or from the evidence, the burden shifts to the complainant and the presumption disappears and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of the complaint. With the principles laid down by the Supreme Court, when we revert back to the facts of this case, it would show that the complainant has stated the money was obtained from his brother, wife and brother’s wife. Admittedly, there is no account sheet is filed. Though the complainant would state that they are in the business from 2001 to 2002 and have different dealing in different goods. When an amount of Rs.12,50,000/- which is not a meager amount was paid as a cash and when the accused was confronted, he came out with the defence that it was taken from his relatives but the income tax return of family members from Ex.D-3 to Ex.D-12 do not show the cash in hand of the said income tax payee for the year 2013-2014 and 2014-2015. In absence of such evidence and any account, the transaction value which is in dispute, the preponderance of probability will hold the sway in favour of the applicant. 13. Consequently, applying the aforesaid principles, I am of the view that both the court below failed to consider the evidence on record thereby wrong inference of law has been drawn despite the fact on record whereby the burden was held to be on the accused/applicant. 14. Under the circumstances, the revision is allowed, judgment dated 21/09/2021 passed by the Sessions Judge, Dhamtari in Criminal Appeal No. 23/2020 is set aside.