JUDGMENT : 1. In the present case, dishonour of cheque number 651151 amounting to Rs.4,00,000/- (Four lac rupees) dated 02.02.2007 (Ex.P/1) of Punjab National Bank under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act”) was in question. 2. It is an undisputed fact that complainant Ashok Saha is an Electronics businessman of Dallirajhara and accused Anup Khobraghade is an employee of Bhilai Steel Plant. Both the parties were known to each other being customer of complainant. It is also undisputed fact that cheque in question (Ex.P/1) bears the signature of accused Anup Khobraghade and parties have an account in Punjab National Bank, from where cheque in question was dishonoured on 12.02.2007. The reason for dishonour has been shown in memorandum of bank (Ex.P/3) that accused Anup Khobragade does not have sufficient funds in his account. Thereafter, Complaint Case No.123 of 2009 filed before the Judicial Magistrate First Class, Rajhara, District Durg, Chhattisgarh (hereinafter referred to as “trial Court”). 3. After considering the facts and circumstances of the case as well as after hearing both the parties, learned trial Court vide its judgment dated 27.03.2009, convicted the accused for the charge levelled against him under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for 3 months and to pay Rs.4,50,000/-(Four lacs fifty thousand rupees) as compensation to the complainant within a period of one month under Section 357(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”). 4. Being aggrieved with the decision of the trial Court regarding above conviction and order of sentence, accused has filed Criminal Appeal No.34 of 2009 before the Additional Sessions Judge (F.T.C.), Balod, District Durg, Chhattisgarh (hereinafter referred to as “Appellate Court”) and after considering materials on record as well as after hearing learned counsel for the parties, allowed the appeal filed by the accused and acquitted him for the offence punishable under Section 138 of the N.I. Act vide its judgment dated 11.05.2010. 5. The said acquittal has been challenged by complainant Ashok Saha in this Acquittal Appeal No.10 of 2011. 6. 5. The said acquittal has been challenged by complainant Ashok Saha in this Acquittal Appeal No.10 of 2011. 6. On behalf of complainant, Deputy Manager of Punjab National Bank, namely, Y.P. Mishra was examined in the trial Court, whereas it was stated by the accused in his defence that in view of missing cheque in question as well as cheque numbers 651151 to 651160, he had requested to stop the payment at police station as well as bank and in this regard, he has examined Head constable Khemlal as DW-1 and Krishna Mohan as DW-2, who is employee of Punjab National Bank. Documents were presented by both the parties in support of their case and relying on them, case of complainant was found proved and as such, judgment of conviction and order of sentence was passed by the trial Court, whereas Appellate Court has held that complainant has failed to prove that when he gave the amount to the accused and by failing to prove the availability of that amount, case of complainant has not been proved beyond doubt, as such, judgment of conviction and order of sentence passed by the trial Court was set aside and accused has been acquitted. 7. Learned counsel for the complainant/appellant submits that Appellate Court has made an error in understanding the presumption under Sections 118 and 139 of the N.I. Act. Accused neither responded to the notice nor got himself examined in his defence. Under the aforesaid provisions, burden of rebutting the presumption in favour of complainant was on the accused, but he has failed to bear the above burden. Therefore, decision of acquittal is not worthy of being sustained in the context of facts and circumstances of the case. He further submits that judgment of acquittal passed by the Appellate Court be set aside and accused should be convicted. He placed reliance in cases of Rohitbhai Jivanlal Patel v. State of Gujarat and another, (2019) 18 SCC 106 , K.N. Beena v. Muniyappan and another., (2001) 8 SCC 458 , Rangappa v. Sri Mohan, (2010) 11 SCC 441 , Lekh Raj Sharma v. Yash Pal Gupta, (2015) 221 DLT 585 and Ragini Gupta v. Piyush Dutt Sharma passed in CRR 5263 of 2018 by the High Court of Madhya Pradesh, decided on 07.03.2019, to buttress his submissions. 8. 8. Per contra, learned counsel for the accused/respondent submits that complainant had not made it clear as to when he had given loan to accused. The legal notice sent by complainant does not even have the signature of complainant or his Advocate. He further submits that respondent had informed the police station on 31.01.2006 about missing of 10 cheques and submitted a request before the bank for stopping of payment of those cheques on 01.02.2006 itself. Thus, the said cheque has been misused by complainant. He also submits that complainant has failed to prove that he had given any loan to respondent and respondent had issued cheque in question in his favour. The cheque in question was not in discharge of any legally enforceable debt or liability, as such, acquittal is justified and instant appeal be dismissed. He placed reliance in case of Basalingappa v. Mudibasappa, (2019) 5 SCC 418 , in support of his contention. 9. I have heard learned counsel for the parties and perused the materials available on record with utmost circumspection. 10. In the case at hand, accused has not challenged the fact that cheque in question (Ex.P/1) bears his signature. Rather, in question No.11 of the statement made under Section 313 of the Cr.P.C., he has admitted the fact that his signature was there on cheque in question. In such a situation, it would be appropriate to look at the legal provisions. 11. Section 118 of the Negotiable Instruments Act, 1881 reads as follows:- “118. Rather, in question No.11 of the statement made under Section 313 of the Cr.P.C., he has admitted the fact that his signature was there on cheque in question. In such a situation, it would be appropriate to look at the legal provisions. 11. Section 118 of the Negotiable Instruments Act, 1881 reads as follows:- “118. Presumptions as to negotiable instruments.– Until the contrary is proved, the following presumptions shall be made :- (a) of consideration – that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date – that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance – that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer – that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps– that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course– that the holder of a negotiable instrument is a holder in due course; provided that; where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.” 12. Similarly, presumption in favour of the holder of a cheque under Section 139 of the Negotiable Instruments Act, 1881 is as follows:- “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.” 13. 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.” 13. In the landmark judgment of Rangappa (supra) (Para 16), has made observations regarding presumption as contemplated under Section 139 of the N.I. Act and has stated that once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the N.I. Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. 14. The Apex Court in case of K.N. Beena (supra) succinctly held that in complaint cases under section 138 of the N.I. Act, the learned trial courts are bound to presume that the cheque is issued against the legal liability. The said presumption is indeed rebuttable. However, the accused is burdened with a liability to prove that the cheque has not been issued against the legal liability. 15. The Hon'ble Supreme Court in case of Rohitbhai Jivanlal Patel (supra) held that the accused must prove that the alleged legal debt doesn't exist. Furthermore, the accused doesn't necessarily need to bring any evidence on record, he/she can disprove the complaint from the evidence already placed on the record. The Apex Court, however, also noted that mere denial is not sufficient to meet the requirements of sections 118 and 139 of the N.I. Act. 16. Furthermore, the accused doesn't necessarily need to bring any evidence on record, he/she can disprove the complaint from the evidence already placed on the record. The Apex Court, however, also noted that mere denial is not sufficient to meet the requirements of sections 118 and 139 of the N.I. Act. 16. The Delhi High Court in case of Lekh Raj Sharma (supra) held that not mentioning the transaction in the ITR records by the complainant doesn't imply that the accused has shifted the burden of presumption under Section 139 of the N.I. Act. Moreover, the High Court of Madhya Pradesh in case of Ragini Gupta (supra) observed that mere non filing of ITR does not prove that the complainant has no source of income. 17. In case of Basalingappa (supra), Hon’ble Supreme Court has held in paragraphs 24 to 25.5 as follows :- “24. The above Kishan Rao v. Shankargouda, (2018) 8 SCC 165 , was a case where this Court did not find the defence raised by the accused probable. The only defence raised was that cheque was stolen having been rejected by the trial court and no contrary opinion having been expressed by the High Court, this Court reversed the judgment of the High Court restoring the conviction. The respondent cannot take any benefit of the said judgment, which was on its own facts. 25. We having noticed the ratio laid down by this Court in 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 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. 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.” 18. In view of above legal provisions and judicial precedents, it is clear that presumption under Sections 118 and 139 of the N.I. Act can be rebutted and for rebuttal, it is not necessary for the accused to examine himself. Rather, said concept can be rebutted on the basis of materials and possibilities available on records. 19. In the case at hand, it is clear that accused has not denied his signature on dishonoured cheque (Ex.P/1). Both the parties were familiar to each other. In that case, while accused has admitted that complainant is an Electronic businessman and he is his customer, then in the light of above provisions, presumption is made in favour of complainant that cheque in question was issued by accused in connection with the discharge of a legally enforceable debt or liability. 20. Now, it remains to be seen whether accused has been successful in rebutting the said presumption, which has been made in favour of complainant ? 21. Regarding the questions raised by accused, complainant has made it clear that even though complaint letter as well as notice sent to accused (Ex.P/4) do not mention when he had given the loan to accused, but in paragraph-1 of affidavit submitted on 16.07.2008 under Section 145 of the Cr.P.C., such fact has been mentioned that accused had taken a loan of Rs.4,00,000/- on 15.12.2006 for his personal need. In this situation, when statement of complainant was recorded in Court on 10.09.2008 and this affidavit had already been submitted, then argument of accused is not found acceptable that said affidavit is being given with an intention to improve any of his shortcomings. 22. The second argument of accused is that legal notice (Ex.P/4) sent to him does not bear signature of complainant or accused. It is noteworthy that above legal notice has been sent by registered post, receipt of which is Ex.P/5 and acknowledgment is Ex.P/6. 22. The second argument of accused is that legal notice (Ex.P/4) sent to him does not bear signature of complainant or accused. It is noteworthy that above legal notice has been sent by registered post, receipt of which is Ex.P/5 and acknowledgment is Ex.P/6. The accused has not even denied receiving the said notice. As per legal provisions, necessary elements are present in the legal notice. In such a situation, since complainant has produced a copy of original notice sent to accused before the Court vide Ex.P/4 and original notice is being served on accused. As such, if there is no signature of anyone in copy of Ex.P/4, then there is no such irregularity in the case of complainant, upon which, his complaint case was rejected. 23. As far as information given by accused at police station and bank about missing of his cheque book is concerned, statement of Head Constable Khemlal (DW-1), posted at Rajhara police station, has been recorded, in which, he has proved the Rojnamchasanha recorded on 31.01.2006 (Ex.D/1) and information given about the same (Ex.D/2). The conclusion drawn from the said documents that accused had informed the police station on 31.01.2006 about missing of cheque No. 651151, but there is no mention of whether the cheque was signed or not. It is noteworthy that accused has stated that along with cheque in question, book of a total of 10 cheques was missing and he has requested the bank for stoppage of its payment, but Exs.D/1 and D/2 are in respect of only one cheque in question. This difference makes the defence of accused doubtful. 24. Two witnesses have been examined with respect to stoppage of payment due to loss of cheque from the bank. Y.P. Mishra, Deputy Manager of Punjab National Bank Dallirajhara was examined as PW-2 on behalf of complainant and Krishna Mohan was examined as DW-2 on behalf of accused. The accused himself has not been examined. There is no document filed as to what request accused had written to the bank. Ex.D/1 has been proved by Y.P. Mishra (PW-2). From perusal of statements of both the examined witnesses, it is clear that accused had made a request to the bank for stoppage of payment of cheque Nos.651151 to 651160 i.e. a total of 10 cheques on 01.02.2006 and the said request was withdrawn by him on 23.03.2006. Ex.D/1 has been proved by Y.P. Mishra (PW-2). From perusal of statements of both the examined witnesses, it is clear that accused had made a request to the bank for stoppage of payment of cheque Nos.651151 to 651160 i.e. a total of 10 cheques on 01.02.2006 and the said request was withdrawn by him on 23.03.2006. But on the said date, a request to stop payment of only cheque No.651151 was kept pending and request to stop payment of remaining 9 cheques, which he had made on 01.02.2006 was withdrawn on 23.03.2006. It has not been made clear as to when and for what reasons, he withdrew his request. If accused had got himself examined, complainant would have got a chance to clarify the same, but he could not do so. 25. From perusal of entire evidence, it is clear that information given by the accused to police was in respect of only one cheque in question and not in respect of 10 cheques, but request to stop payment in bank was made in respect of 10 cheques, out of which, request regarding 9 cheques were withdrawn. The question arises that if 10 cheques were lost together then why a complaint was not made about all of them together. Whether remaining 9 cheques were received back by accused, thereby he had withdrawing the request for stoppage of payment of remaining 9 cheques, does not appear to be possible. Therefore, it is not clear why despite missing of 10 cheques, accused requested to withdraw the stay imposed on payment of remaining 9 cheques and as such, defence of accused appears to be doubtful. 26. Thus, on the basis of above facts and evidence available on record and considering the law laid down in aforementioned cases, defence of accused is not found credible. The accused has failed to rebut the presumption made in favour of complainant and hence, complainant gets the benefit of judicial precedents and it is clear that complainant has proved his case against the accused. In such a situation, acquittal of accused by the Appellate Court is not found justified. 27. In the result, the acquittal appeal filed by the complainant is allowed. The judgment of acquittal dated 11.05.2010 passed by the Appellate Court is hereby set aside. The judgment of conviction dated 27.03.2009 passed by the trial Court is hereby confirmed. 28. In such a situation, acquittal of accused by the Appellate Court is not found justified. 27. In the result, the acquittal appeal filed by the complainant is allowed. The judgment of acquittal dated 11.05.2010 passed by the Appellate Court is hereby set aside. The judgment of conviction dated 27.03.2009 passed by the trial Court is hereby confirmed. 28. Insofar as the question of sentence is concerned, the case is of the year 2007; almost 16 years have passed away. In such a situation, imposing a prison sentence is not found appropriate. Therefore, there is a need for modification in the order rendered by the trial Court on the question of punishment. The sentence of simple imprisonment for 3 years imposed by the trial Court is cancelled and it is ordered that accused Anup Khobraghade shall pay a sum of Rs.6,00,000/- (Six lac rupees) as compensation to the complainant Ashok Saha under Section 138 of the N.I. Act within a period of 60 days from today. In default of payment of compensation amount, accused will be liable to suffer rigorous imprisonment for 6 months. 29. Record of the trial Court be sent back along with a copy of this judgment forthwith for information and necessary compliance.