JUDGMENT : Rakesh Kainthla, J. The present appeal is directed against the judgment dated 22.04.2009 passed by learned Judicial Magistrate, First Class, Court No.1, Amb, District Una, vide which the complaint filed by the appellant (complainant before the learned Trial Court) was dismissed and the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). (Parties shall hereinafter be referred to in the same manner as they were arrayed-before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the accused handed over a cheque bearing No.840242 dated 26.02.2006 for a sum of Rs. 70,000/- drawn on Kangra Central Cooperative Bank, Chintpurni to discharge her legal liability. The complainant presented the said cheque in his account for its realization. The complainant’s bank sent it to the bank of the accused; however, the cheque was dishonoured with an endorsement of ‘funds insufficient’. Amemo dated 01.03.2006. (Ext. CW1/B) was issued by the bank of the accused. The complainant’s bank returned the cheque and the memo with its memo (Ext. CW1/C) to the complainant. The complainant issued a demand notice (Ext. CW1/D) asking the accused to pay the amount within 15 days from the date of the receipt of the notice. The notice was sent by registered A.D. and a postal receipt (Ext. CW1/F) was obtained. The notice was delivered to the accused and acknowledgement (Ext. CW1/E) was received by the complainant. The accused failed to pay the amount of the cheque; hence, a complaint was filed against the accused for taking action against her as per the law. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to her for the commission of an offence punishable under Section 138 of the NI Act. The accused pleaded not guilty and claimed to be tried. 4. The complainant examined himself (CW1) to prove his case. 5. The accused in her statement recorded under Section 313 of Cr.P.C. denied the complainant’s case in its entirety. She stated that the complainant had taken a blank cheque from her. The accused pleaded not guilty and claimed to be tried. 4. The complainant examined himself (CW1) to prove his case. 5. The accused in her statement recorded under Section 313 of Cr.P.C. denied the complainant’s case in its entirety. She stated that the complainant had taken a blank cheque from her. She handed over the entire amount to the complainant. She had only put her signature on the cheque. She is not to pay any money to Budh Dev. She admitted that a notice was served upon her and she had sent a reply to the notice. She stated that the complainant had purchased her land and she had repurchased the same after paying the whole amount. The complainant demanded money from her but she was not to pay any money. She tendered the certified copy of the sale deed in evidence. 6. Learned Trial Court held that the issuance of the cheque, its dishonour and service of notice were not disputed. The cheque carries with it a presumption that it was drawn for consideration and that the holder of the cheque had received the cheque in discharge of the debt/other liability. The complainant failed to mention the details of the transaction between him and the accused. The plea taken by the accused that she had sold the land to Budh Dev and had re-purchased the same has been made probable by the copy of the sale deed brought on record. This was sufficient to rebut the presumption attached to the cheque. The complainant withheld the material evidence regarding the details of the transaction between him and the accused. The version of the complainant was not proved beyond a reasonable doubt. Accordingly, the complaint was dismissed and the accused was acquitted. 7. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court did not properly appreciate the material placed before it. There is a presumption in favour of a holder of the cheque under Section 139 of the NI Act that the cheque was issued in discharge of the legal liability. It was also established that there was a transaction between the parties and the sale deed was executed. The evidence of the accused was not sufficient to rebut the presumption attached to the cheque. It was also established that there was a transaction between the parties and the sale deed was executed. The evidence of the accused was not sufficient to rebut the presumption attached to the cheque. The cheque was dishonoured due to insufficient funds and the accused did not deny the receipt of the notice. All the ingredients of the commission of an offence punishable under Section 138 of the NI Act were fulfilled and the learned Trial Court erred in acquitting the accused; therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr. Atharv Sharma, learned counsel for the petitioner/complainant and Mr. Arun Kumar, learned counsel for the respondent/accused. 9. Mr. Atharv Sharma, learned counsel for the petitioner/complainant submitted that the learned Trial Court did not properly appreciate the material placed before it. The accused admitted her signatures on the cheque and a presumption under Section 139 of the NI Act was to be drawn in the present case. The burden will shift upon the accused to rebut the presumption. The evidence led by the accused was insufficient to rebut the presumption. Learned Trial Court erred in holding that there was a requirement of mentioning the details of the transaction in the complaint. This vitiated the approach of the learned Trial Court; therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Mr Arun Kumar, learned counsel for the respondent/accused supported the judgment passed by the learned Trial Court and submitted that no interference is required with the same. He submitted that the view taken by the learned Trial Court was a reasonable view and this Court should not interfere with the same in the exercise of the jurisdiction under Section 378 of Cr.P.C. Therefore, he prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 12. The present appeal has been filed against a judgment of acquittal. The Hon’ble Supreme Court laid down the parameters of deciding an appeal against acquittal in Jafarudheen v. State of Kerala, (2022) 8 SCC 440 , as under: - “Scope of Appeal filed against the Acquittal: 25. 12. The present appeal has been filed against a judgment of acquittal. The Hon’ble Supreme Court laid down the parameters of deciding an appeal against acquittal in Jafarudheen v. State of Kerala, (2022) 8 SCC 440 , as under: - “Scope of Appeal filed against the Acquittal: 25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters." 13. This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429, wherein it was held: - “15. One of the main contentions raised by the learned counsel appearing for the appellant is to the effect that the High Court ought not to have interdicted with the judgment of the acquittal passed by the Trial Court and only in the event of the judgment of the Trial court was riddled with perversity and the view taken by the Trial Court was not a possible view, same could have been reversed by relying upon the judgment of this Court in case of Murugesan V. State through the Inspector of police (2012) 10 SCC 383 whereunder it came to be held as follows: “33. The expressions “erroneous”, “wrong” and “possible” are defined in the Oxford English Dictionary in the following terms: “erroneous.— wrong; incorrect. wrong.—(1) not correct or true, mistaken. (2) unjust, dishonest, or immoral. possible.—(1) capable of existing, happening, or being achieved. (2) that may exist or happen, but that is not certain or probable.” 34. It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. (2) unjust, dishonest, or immoral. possible.—(1) capable of existing, happening, or being achieved. (2) that may exist or happen, but that is not certain or probable.” 34. It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. However, such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.” 16. It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh (2009) 10 SCC 636 : AIR 2010 SC 589 it has been held by this Court as under: “14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word “perverse” in terms as understood in law has been defined to mean “against the weight of evidence”. We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so. 17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on the exercise of the power to review at large the evidence upon which the order of acquittal was founded and to conclude that upon that evidence the order of acquittal should be reversed. 18. In the case of Sheo Swarup v. King Emperor AIR 1934 PC 227 , it has been held by the Privy Council as under: But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as: 1) The views/opinion of the trial judge as to the credibility of the witnesses; 2) The presumption of innocence in favour of the accused; 3) The right of the accused to the benefit of any doubt; and 4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. 19. 19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka (2007) 4 SCC 415 to the following effect: “42. From the above decisions, in our considered view, the following general principles regarding the powers of the Appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An Appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an Appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an Appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An Appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate court should not disturb the finding of acquittal recorded by the trial court.” 14. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate court should not disturb the finding of acquittal recorded by the trial court.” 14. While dealing with the appeal against the acquittal in a complaint filed for the commission of an offence punishable under Section 138 of the NI Act the Hon’ble Supreme Court held in Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106 that the normal rules with same rigour cannot be applied to the cases under Negotiable Instruments Act because there is a presumption that the holder had received the cheque for discharge of legal liability. The Appellate Court is entitled to look into the evidence to determine whether the accused has discharged the burden or not. It was observed: - 12. According to the learned counsel for the appellant-accused, the impugned judgment is contrary to the principles laid down by this Court in Arulvelu [Arulvelum v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] because the High Court has set aside the judgment of the trial court without pointing out any perversity therein. The said case of Arulvelu [Arulvelum v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] related to the offences under Sections 304-B and 498-A IPC. Therein, on the scope of the powers of the appellate court in an appeal against acquittal, this Court observed as follows : (SCC p. 221, para 36) “36. Careful scrutiny of all these judgments leads to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.” The principles aforesaid are not of much debate. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.” The principles aforesaid are not of much debate. In other words, ordinarily, the appellate court will not be upsetting the judgment of acquittal, if the view taken by the trial court is one of the possible views of the matter and unless the appellate court arrives at a clear finding that the judgment of the trial court is perverse i.e. not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law. Such general restrictions are essential to remind the appellate court that an accused is presumed to be innocent unless proved guilty beyond reasonable doubt and a judgment of acquittal further strengthens such presumption in favour of the accused. However, such restrictions need to be visualised in the context of the particular matter before the appellate court and the nature of the inquiry therein. The same rule with the same rigour cannot be applied in a matter relating to the offence under Section 138 of the NI Act, particularly where a presumption is drawn that the holder has received the cheque for the discharge, wholly or in part, of any debt or liability. Of course, the accused is entitled to bring on record the relevant material to rebut such presumption and to show that preponderance of probabilities are in favour of his defence but while examining if the accused has brought about a probable defence so as to rebut the presumption, the appellate court is certainly entitled to examine the evidence on record in order to find if preponderance indeed leans in favour of the accused. 13. 13. For determination of the point as to whether the High Court was justified in reversing the judgment and orders of the trial court and convicting the appellant for the offence under Section 138 of the NI Act, the basic questions to be addressed are twofold: as to whether the complainant Respondent 2 had established the ingredients of Sections 118 and 139 of the NI Act, so as to justify drawing of the presumption envisaged therein; and if so, as to whether the appellant-accused had been able to displace such presumption and to establish a probable defence whereby, the onus would again shift to the complainant? 15. The present appeal has to be decided as per the judgments of the Hon’ble Supreme Court. 16. The complainant-Budh Dev (CW1) reiterated the contents of the complaint in his proof affidavit. He stated in his cross-examination that 3-4 cases of dishonour of cheque were pending in the Court. 1-2 cases were pending in the Court at Dehra. He handed over the money to the accused in cash in the presence of Tehsildar. Rs.2,00,000/- was paid in cash and a cheque of Rs.70,000/- was handed over in presence of Tehsildar. However, no reference was made by Tehsildar in the sale deed regarding the receipt of the cheque. He denied that the cheque was filled by him. He denied that the cheque and sale deed were executed on the same day. He volunteered to say that the sale deed was executed first and the cheque was to be handed over at the time of the attestation of the mutation. One sale deed was executed in his favour and another sale deed was executed in favour of the accused. He admitted his signature on the cheque inside the red circle. He admitted that the mutation had been attested in favour of the accused based on the sale deed. He was not paying the money to the people on interest. He denied that he had taken three cheques from the accused, which were drawn on Kangra Co-operative Bank. He denied that he had filed a false complaint against the accused. 17. The accused did not dispute her signatures on the cheque. She specifically stated in reply to question No.2 that she had put her signatures on the cheque. He denied that he had taken three cheques from the accused, which were drawn on Kangra Co-operative Bank. He denied that he had filed a false complaint against the accused. 17. The accused did not dispute her signatures on the cheque. She specifically stated in reply to question No.2 that she had put her signatures on the cheque. It was also suggested to the complainant that the accused had handed over a blank cheque after signing the same, therefore, the issuance of the cheque and signatures of the accused are undisputed. It was laid down by this Court in Naresh Verma vs. Narinder Chauhan 2020(1) Shim. L.C. 398 that where the accused had not disputed his signatures on the cheque, the Court has to presume that it was issued in discharge of legal liability and the burden would shift upon the accused to rebut the presumption. It was observed: - “8. Once signatures on the cheque are not disputed, the plea with regard to the cheque having not been issued towards discharge of lawful liability, rightly came to be rejected by learned Courts below. Reliance is placed upon Hiten P. Dalal v. Bartender Nath Bannerji, 2001 (6) SCC 16 , wherein it has been held as under: "The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......" 9. S.139 of the Act provides that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. 18. Similar is the judgment in Basalingappa vs. Mudibasappa 2019 (5) SCC 418 wherein it was held: 24. 18. Similar is the judgment in Basalingappa vs. Mudibasappa 2019 (5) SCC 418 wherein it was held: 24. Applying the proposition of law as noted above, in the facts of the present case, it is clear that the 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. 19. This position was reiterated in M/S Kalamani Tex and another Versus P. Balasubramanian 2021 (5) SCC 283 wherein it was held: “14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystallized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106 , 18 in the following words: “In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant-accused…..” 15. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the Complainant-Respondent to explain the circumstances under which the appellants were liable to pay. Such an approach of the trial Court was directly in the teeth of the established legal position as discussed above and amounts to a patent error of law. 16. No doubt, and as correctly argued by senior counsel for the appellants, the presumptions raised under Section 118 and Section 139 are rebuttable in nature. As held in MS Narayana Menon v. State of Kerela (2006) 6 SCC 39 , 32, which was relied upon in Basalingappa (supra), a probable defence needs to be raised, which must meet the standard of “preponderance of probability”, and not a mere possibility. These principles were also affirmed in the case of Kumar Exports (supra), wherein it was further held that bare denial of passing of consideration would not aid the case of the accused.” 20. Similar is the judgment in APS Forex Services (P) Ltd. v. Shakti International Fashion Linkers (2020) 12 SCC 724 , wherein it was observed: - 7.2. What is emerging from the material on record is that the issuance of a cheque by the accused and the signature of the accused on the said cheque are not disputed by the accused. The accused has also not disputed that there were transactions between the parties. Even as per the statement of the accused, which was recorded at the time of the framing of the charge, he has admitted that some amount was due and payable. However, it was the case on behalf of the accused that the cheque was given by way of security and the same has been misused by the complainant. However, nothing is on record that in the reply to the statutory notice it was the case on behalf of the accused that the cheque was given by way of security. Be that as it may, however, it is required to be noted that earlier the accused issued cheques which came to be dishonoured on the ground of “insufficient funds” and thereafter a fresh consolidated cheque of Rs.9,55,574 was given which has been returned unpaid on the ground of “STOP PAYMENT”. Be that as it may, however, it is required to be noted that earlier the accused issued cheques which came to be dishonoured on the ground of “insufficient funds” and thereafter a fresh consolidated cheque of Rs.9,55,574 was given which has been returned unpaid on the ground of “STOP PAYMENT”. Therefore, the cheque in question was issued for the second time. Therefore, once the accused has admitted the issuance of a cheque which bears his signature, there is a presumption that there exists a legally enforceable debt or liability under Section 139 of the NI Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to rebut such presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid. 9. Coming back to the facts in the present case and considering the fact that the accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the NI Act that there exists a legally enforceable debt or liability. Of course, such presumption is rebuttable in nature. However, to rebut the presumption, the accused was required to lead the evidence that the full amount due and payable to the complainant had been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time after the earlier cheques were dishonoured. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the NI Act. It appears that both, the learned trial court as well as the High Court, have committed an error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139 of the NI Act. It appears that both, the learned trial court as well as the High Court, have committed an error in shifting the burden upon the complainant to prove the debt or liability, without appreciating the presumption under Section 139 of the NI Act. As observed above, Section 139 of the Act is an example of reverse onus clause and therefore, once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter, it is for the accused to rebut such presumption by leading evidence. 21. This position was reiterated in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148 : 2023 SCC OnLine SC 1275 wherein it was observed: 36. 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 [Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 : (2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40]]. Therefore, the mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption. 22. The learned Trial Court had rightly pointed out that there is a presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued in the discharge of the legal liability. This presumption was explained by the Hon’ble Supreme Court in Triyambak S. Hegde Versus Sripad, 2022 (1) SCC 742 as under: 11. From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exhibits P-6 and P-2 is not disputed. Exhibit P-2 is the dishonoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the courts below a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Section 139 of the N.I. Act reads as hereunder:- "139. If that be the position, as noted by the courts below a presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Section 139 of the N.I. Act reads as hereunder:- "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." 12 Insofar as the payment of the amount by the appellant in the context of the cheque having been signed by the respondent, the presumption for the passing of the consideration would arise as provided under Section 118(a) of N.I. Act which reads as hereunder: - "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." 13. The above-noted provisions are explicit to the effect that such presumption would remain until the contrary is proved. The learned counsel for the appellant in that regard has relied on the decision of this Court in K. Bhaskaran vs. Sankaran Vaidhyan Balan & Anr., 1999 (7) SCC 510 wherein it is held as hereunder: "9. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date on which the cheque bears. Section 139 of the Act enjoins the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The Trial Court was not persuaded to rely on the interested testimony of DW-1 to rebut the presumption. The said finding was upheld by the High Court. It is not now open to the accused to contend differently on that aspect." 14. The learned counsel for the respondent has however referred to the decision of this Court in Basalingappa vs. Mudibasappa, 2019 (5) SCC 418 wherein it is held as hereunder: - "25. The said finding was upheld by the High Court. It is not now open to the accused to contend differently on that aspect." 14. The learned counsel for the respondent has however referred to the decision of this Court in Basalingappa vs. Mudibasappa, 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 the following manner: 25.1. Once the execution of the 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 the 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 into the witness box to support his defence. 26. Applying the proposition of law as noted above, in the facts of the present case, it is clear that the 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 the cheque was issued in relation to a loan of Rs.25,000 taken by the accused, PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received a monetary benefit of Rs.8 lakhs, which was encashed by the complainant. In cross-examination of PW1, when the specific question was put that the cheque was issued in relation to a loan of Rs.25,000 taken by the accused, PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received a monetary benefit of Rs.8 lakhs, which was encashed by the complainant. It was also brought in the evidence in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000 to Balana Gouda towards sale consideration. Payment of Rs.4,50,000 being admitted in the year 2010 and a further payment of a loan of Rs. 50,000 with regard to which Complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ext. D-2, there was a burden on the complainant to prove his financial capacity. In the years 2010-2011, as per the own case of the complainant, he made a payment of Rs.18 lakhs. During his cross-examination, when the financial capacity to pay Rs. 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts." 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 an 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. 16. On the position of law, the provisions referred to in Sections 118 and 139 of N.I. Act as also the enunciation of law as made by this Court needs no reiteration as there is no ambiguity whatsoever. 16. On the position of law, the provisions referred to in Sections 118 and 139 of N.I. Act as also the enunciation of law as made by this Court needs no reiteration as there is no ambiguity whatsoever. In, Basalingappa vs. Mudibasappa (supra) relied on by the learned counsel for the respondent, though on facts the ultimate conclusion therein was against raising presumption, the facts and circumstances are entirely different as the transaction between the parties as claimed in the said case is peculiar to the facts of that case where the consideration claimed to have been paid did not find favour with the Court keeping in view the various transactions and extent of the amount involved. However, the legal position relating to presumption arising under Sections 118 and 139 of N.I. Act on a signature being admitted has been reiterated. Hence, whether there is a rebuttal or not would depend on the facts and circumstances of each case. 23. This position was reiterated in Tedhi Singh vs. Narayan DassMahant 2022 (6) SCC 735 wherein it was held: 7. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the N.I. Act provides that the Court shall presume 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. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of 'probable defence' has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa (supra), this Court notes that Section 139 of the N.I. Act is an example of reverse onus [see (2010) 11 SCC 441 ). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist. 24. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist. 24. Similar is the judgment in P. Rasiya v. Abdul Nazer, 2022 SCC OnLine SC 1131 wherein it was observed: “As per Section 139 of the N.I. Act, 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 discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the 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. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary.” 25. This position was reiterated in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148 : 2023 SCC OnLine SC 1275 wherein it was observed at page 161: 33. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability”. It will be seen that the “presumed fact” directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated—reference to one can be taken as reference to another] 34. It will be seen that the “presumed fact” directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138. [The rules discussed hereinbelow are common to both the presumptions under Section 139 and Section 118 and are hence, not repeated—reference to one can be taken as reference to another] 34. 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. 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”. 35. The Court will necessarily presume that the cheque had been issued towards the 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 the 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 & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35 ]” 26. Therefore, the Court has to start with the presumption that the cheque was issued in discharge of legal liability and the burden is upon the accused to prove the contrary. 27. In the present case, the learned Trial Court had also proceeded on the basis of the presumption. Learned Trial Court held that the cheque had a presumption that it was issued in discharge of the legal liability; however, the learned Trial Court doubted the existence of the consideration due to the absence of that plea in the complaint regarding this fact. It was laid down by the Hon’ble Supreme Court in P.Rasia (supra) that there is no requirement to mention the nature of the transaction or the source of the fund in the complaint. Therefore, the learned Trial Court erred in discarding the version of the complainant due to the absence of any recital of this fact in the complaint. 28. It was laid down by the Hon’ble Supreme Court in P.Rasia (supra) that there is no requirement to mention the nature of the transaction or the source of the fund in the complaint. Therefore, the learned Trial Court erred in discarding the version of the complainant due to the absence of any recital of this fact in the complaint. 28. Sh. Arun Kumar, learned counsel for the respondent/accused has relied upon the judgment of Vijay vs. Laxman and anr., 2013 (3)SCC 86 , wherein Hon’ble Supreme Court was pleased to hold that the absence of the details of advancing the loanor the documentary evidence was a significant circumstance. However, the Hon’ble Supreme Court further went on to hold that the testimony of Jeevan Karori (DW1) made the complainant’s case highly suspect. The non-examination of the father of the complainant was also adversely commented upon. This shows that the judgment is based on its facts and will not assist the accused in the present case. 29. Learned Trial Court relied upon the judgment of Krishna Janardhan Bhat vs. Dattatraya G. Hegde, 2008 (4) SCC 54 , to hold that the existence of legal debt is not a matter of presumption under Section 139 of the NI Act. This judgment was considered by the Hon’ble Supreme Court in Rangappa v. Sri Mohan, (2010) 11 SCC 441 : 2010 SCC OnLine SC 583, and it was held that the observations made in Krishan Janardhan Bhat (supra) may not be correct. It was observed: “26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [ (2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.” 30. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.” 30. In similar circumstances, the Hon’ble Supreme Court had held in Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106 , 18 that once the presumption had been drawn, the onus shifted to the accused and unless the accused discharged the onus, any doubt on the complainant’s case could not have been raised for want of evidence regarding the source of fund or non-examination of the witnesses. It was observed: - “18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant-accused. The aspect relevant for consideration had been as to whether the appellant-accused has brought on record such facts/material/circumstances which could be of a reasonably probable defence.” 31. It was laid down by the Hon’ble Supreme Court in Uttam Ram Versus Devinder Singh Hudan and another (2019) 10 SCC 287 that the complainant is not to prove the debt as in a civil court in view of the presumption but only to prove that the cheque was issued by the accused. It was observed: “20. It was laid down by the Hon’ble Supreme Court in Uttam Ram Versus Devinder Singh Hudan and another (2019) 10 SCC 287 that the complainant is not to prove the debt as in a civil court in view of the presumption but only to prove that the cheque was issued by the accused. It was observed: “20. The Trial Court and the High Court proceeded as if, the appellant is to prove a debt before a civil court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. Dishonour of a cheque carries a statutory presumption of consideration. The holder of the cheque in due course is required to prove that the cheque was issued by the accused and that when the same was presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability.” 32. It was laid down in P. Rasiya v. Abdul Nazer, 2022 SCC OnLine SC 1131 that the complainant is not to state the nature of the transaction or the source of funds. It was observed: “By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, 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 discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque are 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. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque are 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. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary. The aforesaid has not been dealt with and considered by the High Court.” 33. Therefore, in view of the binding precedents of the Hon’ble Supreme Court, the complainant is not required to prove the existence of legally enforceable debt or liability as this is a matter of presumption. Rather, the accused is required to disprove the existence of legally enforceable debt or liability. 34. The accused tendered the copy of the sale deed (Ext. D2) in evidence, which shows that the complainant had sold the land to the accused for Rs.1,75,000/- out of which Rs.1,05,000/-was received at home and Rs.70,000/- was to be paid at the time of the attestation of the mutation. The complainant also stated in his cross-examination that the cheque was regarding the amount to be received at the time of the attestation of the mutation. The cheque(Ext. CW1/A) was issued for the amount of Rs.70,000/-. This sale deed probabilizes the version of the complainant that the cheque (Ext. CW1/A) was issued for Rs.70,000/- for the payment of the balance consideration, which was to be received at the time of the attestation of the mutation. Hence, the defence evidence also probablised the complainant’s version. 35. The accused stated in her statement recorded under Section 313 of Cr.P.C. that she had paid the whole amount to the complainant. The document produced by her does not mention the fact that the whole amount was paid by her to the complainant; rather it shows that an amount of Rs.70,000/- was still payable. No receipt was produced on record to show the payment of the whole of the amount. The document produced by her does not mention the fact that the whole amount was paid by her to the complainant; rather it shows that an amount of Rs.70,000/- was still payable. No receipt was produced on record to show the payment of the whole of the amount. The accused did not step into the witness box to state on oath that she had made the payment of the whole of the amount. It was held in Sumeti Vij vs. Paramount Tech Fab Industries AIR 2021 SC 1281 that the accused has to lead defence evidence to rebut the presumption and mere denial in his statement under Section 313 is not sufficient to rebut the presumption. It was observed: “21. That apart, when the complainant exhibited all these documents in support of his complaints and recorded the statement of three witnesses in support thereof, the appellant has recorded her statement under Section 313 of the Code but failed to record evidence to disprove or rebut the presumption in support of her defence available under Section 139 of the Act. The statement of the accused recorded under Section 313 of the Code is not substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration." (Emphasis supplied)” 36. Therefore, the burden could not have been rebutted by merely making a statement under Section 313 Cr.P.C. 37. The complainant admitted in his cross-examination that 3-4 cases were pending in the Court regarding the cheque. 1-2 cases were pending at Dehra. It was submitted based on these admissions that the complainant is a money-lender and he could not have filed any complaint under Section 138 of the NI Act without a proper licence. This submission is not acceptable. It was laid down by this Court in Rajbir Singh Versus Geeta Devi (2019) 2 B.C. 603 that the provisions of the Registration Money Lenders Act apply only to the suits and not to the complaint filed u/s 138 of N.I. Act. The Court cannot dismiss the complaint as not maintainable on the ground that the complainant is not a registered moneylender. It was observed: “10. The Court cannot dismiss the complaint as not maintainable on the ground that the complainant is not a registered moneylender. It was observed: “10. The learned trial Magistrate, had, recorded a conclusion, that, the complainant was engaged in the business of money lending, hence, in the face, of the provisions, borne, in Section 3 of the H. P. Registration of Money Lenders Act, 1976, provisions whereof stand extracted hereinafter:- "3. Suits and applications by money-lenders barred, unless money- Notwithstanding anything contained in any other enactment for the time being in force a suit by a money-lender for the recovery of loan or an application by money-lender for the execution of a decree relating to a loan, shall, after the commencement of this Act, be dismissed, unless the moneylender, at the time of institution of the suit or presentation of the application for execution, or at the time of decreeing the suit or deciding the application for execution,- (a) is registered; and (i) holds a valid licence, in such, form and in such manner as may be prescribed; or (ii) holds a certificate from a Commissioner granted under section 10, specifying the loan in respect of which the suit is instituted, or the decree in respect of which the application for execution is presented; or (iii) if he is not already a registered and licensed money-lender, satisfies the court that he has applied to the Collector to be registered and licensed and that such application is pending; Provided that in such a case, the suit or application shall not be finally disposed of until the application of the money-lender for registration and grant of the licence pending before the Collector is finally disposed of. " (i) Whereunder an unregistered money lender, is, barred, to enforce his claim, against, his borrower by instituting a civil suit or upon rendition of an affirmative decree, he is forbidden, to realize the decretal amount, through his casting an execution petition, before, the executing court concerned, (ii) hence concluded that the amount, borne, in Ex. CW1/A, being, not a legally recoverable debt or a legally enforceable debt, thereupon, pronounced an order, of acquittal, upon, the respondent/accused. CW1/A, being, not a legally recoverable debt or a legally enforceable debt, thereupon, pronounced an order, of acquittal, upon, the respondent/accused. The factual besides evidentiary matrix, for, the learned trial Court, hence, erecting the aforesaid inference, (iii) is, comprised, of the inability, of, the complainant, to, explain the nature of his relationship, with, the accused, (iv) AND also stems, from, his also acquiescing qua his instituting complaint(s), under, Section 138 of the Negotiable Instruments Act, against, one Ranjna Devi, and, one Basant Singh, wherewith whom, he has also not explained his relationship. However, the aforesaid conclusions, are mis-founded, and, are apparently surmisally drawn, (v) given the aforesaid Ranjna Devi, and, Basant Singh, not, being cited, as witnesses, by the respondent/accused, for, theirs hence rendering testifications, qua their borrowing(s), of, money from the complainant, and, his lending vis-a-vis them, also being accompanied by his charging or levying interest, upon, the principal sum(s). (vi) Also hence, for, theirs rendering testifications, of, in theirs making borrowing(s) from the complainant, theirs holding, no acquaintance with him, and, that in their relevant borrowing(s), from, the complainant, theirs being solitarily guided by the factum of his being an unlicensed professional money lender. However, evidence, in regard aforesaid, is grossly amiss hereat, (vii) thereupon, it was in sagacious, for, the learned trial court, to conclude qua the accused, being an unlicensed professional moneylender, and, his charging interest vis-a-vis the money lent by him vis-a-vis the accused, despite, his being wholly unacquainted, with her, or other borrowers. (viii) More so, when PW-2, espouses, hers, being well known, to the respondent/accused, also, when the relevant transaction, occurred, in the presence of the wife of the complainant, besides with the respondent/accused, not making, any testification, qua the relevant borrowings, made by her, from the complainant, being, a sequel of hers, knowing, the complainant to be engaged in the profession, of, money lending. Furthermore, also when, the borrowings, rather made, from, professional money lenders, by the latter's customers, enjoin also an eruption of clinching proof, qua, charging of interest thereon, by the moneylender, (ix) whereas with no evidence surging forth hereat, in the display of the amount, carried in the dishonoured negotiable instrument, also carrying therein, the apt interest levied or charged thereon. Furthermore, also when, the borrowings, rather made, from, professional money lenders, by the latter's customers, enjoin also an eruption of clinching proof, qua, charging of interest thereon, by the moneylender, (ix) whereas with no evidence surging forth hereat, in the display of the amount, carried in the dishonoured negotiable instrument, also carrying therein, the apt interest levied or charged thereon. Contrarily, with the existence, of, evidence qua the initial borrowings, made by the respondent/accused, from, the complainant, rather bearing consonance, with, the amount carried, in the dishonoured negotiable instrument, (x) whereupon, it is apt, to, conclude, of no, interest being charged or levied by the complainant, from, the respondent/accused, in the latter making, hence, borrowings from him. Corollary thereof is, it being unbefitting to conclude, of, the complainant, charging or levying, any interest, on the money lent by him to the apposite borrowers AND hence his being not construable to be a money lender. 11. Be that as it may, even if assumingly, the complainant, is construable to be an unregistered or an unlicensed professional money lender, and, even if assumingly, the bar constituted under Section 3 of the H. P. Registration of Money Lenders Act, 1976, is attracted vis-a-vis the purported business of money lending, carried by the complainant, (i) nonetheless, the bar, is, attracted only, against, institution of a civil suit, and, for realization, through, coercive processes, of, decrees rendered thereon, (ii) the bar obviously, is, not attracted vis-a-vis, the institution of a complaint, under Section 138 of the Negotiable Instruments Act, (iii) given non existence of any specific explicit mandate therein qua the bar encapsulated therein, vis-a-vis, institution of a civil suit, by any unlicensed money lender, for hence his seeking recovery, of, amounts lent by him, to, his borrowers, also being extendable qua the institution of a complaint under Section 138 of the Negotiable Instruments Act, by a money lender against his borrower. Consequently, omission of existence, of, an explicit apposite exclusionary mandate, in Section 3 of the H. P. Registration of Money Lenders Act, 1976, against institution, of, a statutory complaint, by a professional money lender against his borrower, also hence, constrains a conclusion, that, mandate thereof, is, unattractable vis-a-vis institution, of a statutory complaint, by a money lender, against his borrowers, (a) unless evidence surges forth, of the apposite lending being provenly, ingrained, with entrenched prohibitive vices, (b) whereupon, alone the lending, would be construable to be, not, a legally recoverable debt nor a legally enforceable debt, (c) whereas, with no evidence hereat, rather surging forth, qua the sums embodied, within, the cheque, hereat carrying, any, entrenched prohibitive vices, thereupon, even if assumingly, the complainant, is, a professional unlicensed money lender, yet the lending made by him vis-a-vis the accused, are, to be construable to be both, a legally recoverable debt besides a legally enforceable debt. (d) More so, when evidently no proof is forthcoming qua the respective borrowings, being made, subject to levying or charging, of, interest thereon.” 38. This question was again considered by this Court in Bal Krishan Rawat Versus Gian Lal 2020 ACD 984 and it was held that a loan advanced based on a cheque falls within the exception and is not barred by the H.P Registration of Money Lenders Act. It was observed: 6(iii) The object of the H.P. Registration of Money Lenders Act, 1976 is to register money-lenders and to regulate their business in Himachal Pradesh. Section 3 of this Act provides that a suit inter-alia for recovery of loan, by a moneylender shall be dismissed unless the moneylender is registered and licensed as such under the Act. Section 3 runs as under: "3. Section 3 of this Act provides that a suit inter-alia for recovery of loan, by a moneylender shall be dismissed unless the moneylender is registered and licensed as such under the Act. Section 3 runs as under: "3. Suits and applications by moneylenders barred unless the moneylender is registered and licensed.- Notwithstanding anything contained in any other enactment for the time being in force, a suit by a money-lender for the recovery of a loan, or an application by a money-lender for the execution of a decree relating to a loan, shall, after the commencement of this Act, be dismissed, unless the moneylender, at the time of the institution of the suit or presentation of the application for execution, or at the time of decreeing the suit or deciding the application for execution,- (a) is registered; and (i) holds a valid licence, in such form and in such manner as may be prescribed; or (ii) holds a certificate from a Commissioner granted under section 10, specifying the loan in respect of which the suit is instituted, or the decree in respect of which the application for execution is presented; or (b) if he is not already a registered and licensed money-lender, satisfies the court that he has applied to the Collector to be registered and licensed and that such application is pending: Provided that in such a case, the suit or application shall not be finally disposed of until the application of the money-lender for registration and grant of the licence pending before the Collector is finally disposed of." Thus a money lender at the time of institution of the suit for recovery of loan amount should be duly registered as such under the Act and should hold a valid license of money lending as prescribed in the Act. In case a money lender is not registered and licensed under the Act then he should satisfy the Court that his such application in that regard is pending before the concerned authority, which should be disposed of before the disposal of the recovery suit. In case a money lender is not registered and licensed under the Act then he should satisfy the Court that his such application in that regard is pending before the concerned authority, which should be disposed of before the disposal of the recovery suit. Who is a 'money lender' has been defined in Section 2(9) of the Act as under: "2(9) "money-lender" means a person, or a firm, carrying on the business of advancing loans and includes the legal representatives and the successors-in-interest whether by inheritance, assignment or otherwise, of such person or firm, provided that nothing in this definition shall apply to- (a) a person who is the legal representative or is by inheritance the successor-in-interest of the estate of a deceased money-lender together with all his rights and liabilities if such person - (i) winds up the estate of such money-lender: (ii) realises outstanding loans; (iii) does not renew any existing loan, or advance any fresh loan; (b) a bonafide assignment by a money-lender of a single loan to anyone other than the wife or husband of such assignor, as the case may be, or any person, who is descended from a common grandfather of the assignor;" The 'money lender' advances loans. Section 2(8) defines 'loan' in the following manner:- "(8) "loan" means an advance whether secured or unsecured of money or in kind at interest and shall include any transaction which the court finds to be in substance a loan, but shall not include - (a) an advance in kind made by a landlord to his tenant for the purposes of husbandry: Provided that the market value of the return does not exceed the market value of the advance as estimated at the time of advance; (b) a deposit of money or other property in a Post Office Savings Bank, or any other Bank, or with a company, or with a co-operative society, or with any employer, as security from his employees; (c) a loan to or by, or a deposit with, any society or association registered under the Societies Registration Act, 1860 (21 of 1860) or under any other enactment; (d) a loan advanced by or to the Central Government or any State Government or by or to any local body or panchayat under the authority of the Central Government or any State Government; (e) a loan advanced by a bank, a co-operative society or a company, whose accounts are subject to audit by a certified auditor under the Companies Act, 1956, (1 of 1956) or under any other law for the time being in force; (f) a loan advanced by a trader to a trader, in the regular course of business, in accordance with trade usage; (g) an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, (26 of 1881) other than a promissory note." 6(iv) Definition of 'loan' assumes significance in determining the applicability of the H.P. Registration of Money Lenders Act, to the facts of the case. Not all kinds of loans are covered under Section 2(8) of the Act. Reference in this regard can be made to the following para from titled Gajanan and Others vs. Seth Brindaban, (1970) 2 SCC 360 where provisions of Central Provinces and Berar Moneylenders Act were being considered:- "5........"Moneylender" as defined in cl. (v) of S. 2 means a person who in the regular course of business advances a loan as defined in this Act and it includes his legal representatives and successors in interest. "Loan" as defined in cl. (v) of S. 2 means a person who in the regular course of business advances a loan as defined in this Act and it includes his legal representatives and successors in interest. "Loan" as defined in cl. (vii) means an actual advance whether of money or in kind at interest and it includes any transaction which the court finds to be in substance a loan. It does not include inter alia an advance made on the basis of a negotiable instrument other than a promissory note.........." Advances/loans falling within the exceptions (a) to (g) of Section 2(8), fall outside the ambit of the Act. Advancing such kinds of loans, which fall within the exceptions carried out in Section 2(8) of the Act, would not make a person a moneylender in terms of the H.P. Registration of Money Lenders Act. Such a person, who has advanced loans, which are covered within the exceptions of Section 2(8) of the Act is not required to be registered or licensed under the Act as a money-lender. Suit for recovery of the loan amount, falling in the exceptions (a) to (g) of Section 2(8) of the Act, therefore, cannot be held as not maintainable for want of registration and license as a moneylender under the Act. In the facts of the case, the concurrent factual findings of both the learned Courts below are that various recovery suits had been instituted by the plaintiff in different Courts. This fact had even been acknowledged by the plaintiff in his statement. However, there was no evidence either led by the defendant in support of issue No. 6 or available in any other form before the learned Courts below to conclude that various cases instituted by the plaintiff in different Courts were for recovery of that kind of loan, which was included in the definition of 'loan' under Section 2(8) of the Act. For want of specific evidence in that regard, there could be a possibility that all the recovery suits statedly preferred by the plaintiff were for recovery of those loans, which fell within the exceptions (a) to (g) of Section 2(8) of the Act and, therefore, were excluded from the applicability of the Act. It is also to be borne in mind that the instant case for recovery of the amount was based on a loan advanced in lieu of a cheque. It is also to be borne in mind that the instant case for recovery of the amount was based on a loan advanced in lieu of a cheque. 'Cheque' as per Section 16 of the Negotiable Instruments Act, is a bill of exchange and falls within the definition of 'Negotiable Instrument' as spelt out in Section 13 of the Negotiable Instruments Act. An advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act falls in category (g) of the exceptions to the definition of 'loan' under Section 2(8) of H.P. Registration of Money Lenders Act. In such a scenario, an instant suit for recovery of the amount cannot be held to be not maintainable for want of the plaintiff's registration and license as a money-lender. Findings of learned Courts below to the contrary, therefore, are not sustainable. Point is answered accordingly.” 39. Therefore, the complaint cannot be dismissed on the ground that the complainant is a money-lender and he does not have any license for the same. 40. It was suggested to the complainant in his cross-examination that he had filled the cheque himself. The complainant denied this fact and a denied suggestion does not amount to any brief. The accused stated in her statement recorded under Section 313 of Cr.P.C. that she had handed over a blank cheque to the complainant; however, she had not given any evidence to prove this fact, therefore, her plea that a blank cheque was issued has not been established. In any case, it was laid down by the Hon’ble Supreme Court in Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197 , that a person is liable for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act even if the cheque is filled by some other person. It was observed: “37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a 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 the discharge of a liability. It is immaterial that the cheque may have 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 would be attracted. 38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 39. It is not the case of the respondent accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of the exercise of undue influence or coercion. The second question is also answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 41. The fact that the appellant-complainant might have been an Income Tax practitioner conversant with knowledge of the law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should have given or signed a blank cheque to the appellant complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them. 42. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-accused should have given or signed a blank cheque to the appellant complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them. 42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent-accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act.” 41. This position was reiterated in Oriental Bank of Commerce vs. Prabodh Kumar Tewari 2022 0 Supreme (SC) 837 wherein it was observed: “12. The submission which has been urged on behalf of the appellant is that even assuming, as the first respondent submits, that the details in the cheque were not filled in by the drawer, this would not make any difference to the liability of the drawer. xxxxxx 15. A drawer who signs a cheque and hands it over to the payee, is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in the discharge of a liability. The presumption arises under Section 139” 42. Therefore, the cheque is not bad even if it is not filled by the drawer. 43. The presumption arises under Section 139” 42. Therefore, the cheque is not bad even if it is not filled by the drawer. 43. Learned Trial Court also relied upon the judgment of the Hon’ble Supreme Court in Kali Ram versus State of HP 1973(2) SCC 808 to hold that the accused is presumed to be innocent and the burden lies upon the prosecution to prove its case beyond a reasonable doubt, however, in the present case, there is a statutory presumption, therefore, the Court has to start with the presumption that the cheque was issued in discharge of the legal liability and the burden is upon the accused to establish to the contrary on the preponderance of probability. Even this fact was acknowledged in the judgment of Kali Ram (Supra). 44. As already stated, the evidence led by the accused is not sufficient to rebut the presumption; rather the sale deed produced by the complainant corroborates the version of the complainant that a cheque of Rs.70,000/- was issued regarding the amount to be paid under the sale deed. Thus, the learned Trial Court had wrongly held that the accused had succeeded in rebutting the presumption attached to the cheque. 45. The dishonour of the cheque was not specifically denied. The memo of dishonour (Ext. CW1/B) issued by the bank of the accused shows that the cheque was dishonoured with an endorsement of ‘insufficient funds’. There is a presumption under Section 146of the NI Act regarding the correctness of the memo of dishonour and the burden lies upon the person who alleges to be contrary to prove the same. In the present case, the accused did not lead any evidence to show that she had sufficient amount in her account to honour the cheque and the memo of dishonour was wrongly issued by the bank; therefore, the complainant’s version that the cheque was dishonoured due to the insufficient funds is to be accepted as correct. 46. The complainant stated that he issued a Notice (Ext. CW1/D) to the accused asking her to make the payment of the amount of the cheque. The accused admitted in her statement recorded under Section 313 Cr.P.C. that the complainant had issued a notice to her. She further stated that she had sent a reply to the notice. This clearly shows that the accused had received the notice. CW1/D) to the accused asking her to make the payment of the amount of the cheque. The accused admitted in her statement recorded under Section 313 Cr.P.C. that the complainant had issued a notice to her. She further stated that she had sent a reply to the notice. This clearly shows that the accused had received the notice. She never claimed that the amount was paid by her after the receipt of the notice; rather she claimed that she did not owe any amount to the complainant. Therefore, it was duly proved that the accused had failed to pay the amount to the complainant despite the receipt of the notice of demand. 47. The learned Trial Court considered the presumption but misdirected itself by relying upon the judgment of the Hon’ble Supreme Court in Krishna Janardhan Bhatt (supra), which was specifically overruled on the point relied upon by the learned Trial Court. Learned Trial Court had taken a view which could not have been taken by any reasonable person. The judgment of the learned Trial Court proceeds in ignorance of the settled position of law and the same is liable to be interfered with even in an appeal against the acquittal. 48. It was laid down in Rajesh Jain (supra) that when the Court failed to consider the presumption under Section 139 of the Negotiable Instruments Act, its judgment could be interfered with. It was observed at page 166: 54. As rightly contended by the appellant, there is a fundamental flaw in the way both the courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the court can straightaway proceed to convict him, subject to the satisfaction of the other ingredients of Section 138. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the court can straightaway proceed to convict him, subject to the satisfaction of the other ingredients of Section 138. If the court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking the aid of the presumption. The court would then take an overall view based on the evidence on record and decide accordingly. 55. At the stage when the courts concluded that the signature had been admitted, the court ought to have inquired into either of the two questions (depending on the method in which the accused has chosen to rebut the presumption): Has the accused led any defence evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the “particular circumstances of the case”? 56. The perversity in the approach of the trial court is noticeable from the way it proceeded to frame a question at trial. According to the trial court, the question to be decided was “whether a legally valid and enforceable debt existed qua the complainant and the cheque in question (Ext. CW I/A) was issued in discharge of said liability/debt”. When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right. The onus instead of being fixed on the accused has been fixed on the complainant. A lack of proper understanding of the nature of the presumption in Section 139 and its effect has resulted in an erroneous order being passed. 57. Einstein had famously said: “If I had an hour to solve a problem, I'd spend 55 minutes thinking about the problem and 5 minutes thinking about solutions.” Exaggerated as it may sound, he is believed to have suggested that the quality of the solution one generates is directly proportionate to one's ability to identify the problem. A well-defined problem often contains its own solution within it. 58. A well-defined problem often contains its own solution within it. 58. Drawing from Einstein's quote, if the issue had been properly framed after careful thought and application of judicial mind, and the onus correctly fixed, perhaps, the outcome at trial would have been very different and this litigation might not have travelled all the way up to this Court.” 49. Therefore, in view of the above, the present appeal is allowed, the judgment passed by the learned Trial Court is set aside and the accused is convicted of the commission of an offence punishable under Section 138 of the NI Act. 50. Let the accused be produced on 22.04.2024 for hearing her on the quantum of sentence.