JUDGMENT : HEMANT M. PRACHCHHAK, J. 1. Present application is filed by the applicant-original complainant under Section 378(4) of the Criminal Procedure Code, 1973 for leave to appeal against the impugned judgment and order dated 25.05.2023 passed by the learned Special Judge, Negotiable Instruments Act Court, Vadodara (hereinafter be referred to as “the trial Court”) in Criminal Case No. 41828 of 2011 whereby the learned Special Judge has acquitted the respondents-accused from the charges levelled against them. 2. Brief facts of the present case are that the applicant is a partnership firm and doing the business of manufacturing battery chargers, static excitation/AVR panels, LT panels and PLC/SCADA panels. It is alleged that respondent No. 2 is a proprietary firm and respondent No. 3 is proprietor of respondent No. 2 and respondent accused had awarded work for renovation and automation for 66 nos. of Koshi Barrage Gates at Patna, Bihar and the said work was sub-contracted by accused to applicant-firm. It is alleged that for the part payment in relation of the work under contract, accused issued a cheque of Rs.30,00,000/- in favour of the applicant and the said cheque came to be deposited by the applicant in the bank, which was returned with an endorsement “payment stopped by drawer. Thereafter, the applicant issued notice to respondent-accused under Section 138 of the Negotiable Instruments Act (hereinafter be referred to as “the N.I. Act”) and in response to the said notice, the respondent gave evasive reply and the applicant filed the criminal complaint before the Special Court (N.I. Act), which came to be rejected and acquitted the accused. 3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the applicant has preferred the appeal. 4. Heard Mr. Panthil Majmudar, learned counsel appearing on behalf of the applicant and Mr. D.C. Sejpal, learned counsel appearing for the respondents-accused at length. 5. Mr. Majmudar, learned counsel has submitted the same facts which are narrated in the memo of application and has submitted that the trial Court has committed manifest error while passing the impugned judgment and order of acquittal mainly on the ground that the complainant has failed to prove legal enforceable debt and the disputed cheque in question was given by the accused towards final settlement as security and basic ingredients of Section 138 of the N.I. Act. He has submitted that in fact, the complainant has prima facie proved that the cheque was issued by the accused for his legal enforceable debt and signature was also proved and, therefore, under Sections 138 and 139 of the N.I. Act, the presumption against the accused that the accused has issued the said cheque towards legal enforceable debt was proved by the complainant, however, the said fact has not been properly appreciated and considered by the trial Court. He has submitted that on perusal of the evidence of the authorized officer of the complainant, it appears that the complainant has proved the case against the accused by leading cogent and convincing evidence and by producing the relevant documentary evidence before the trial Court. However, the trial Court has overlooked the said fact and not considered all the relevant material while recording the findings and thus the accused to be held guilty for the offence under Section 138 of the N.I. Act. He has submitted that the complainant has supplied the material which requires for execution of the contract, even the accused was unable to complete the tender process and, therefore, the applicant has given advance payment in favour of the accused while opening new account in the bank and to complete the tender contract issued by the State of Bihar work for renovation and automation of 66 nos of Koshi Barrage Gates at Patna, Bihar, for which they have entered in Joint Venture Consortium Agreement. He has submitted that the accused has issued work order and in response thereto, the complainant has supplied the raw material and also provided assistance in executing work contract and as the applicant is having expert in the field of automation and through its expert engineer and team have to execute the said work at Patna and the relevant documents to that effect are on record. He has submitted that considering the said documents, it appears that the accused, with an intend to cheat the complainant, has not fulfilled the conditions. 5.1 Mr. Majmudar, learned counsel has drawn the attention of this Court to the Joint Venture Consortium Agreement at Exhibit 94 executed between the complainant and the accused wherein necessary conditions were stipulated, which reads as under: “1. 5.1 Mr. Majmudar, learned counsel has drawn the attention of this Court to the Joint Venture Consortium Agreement at Exhibit 94 executed between the complainant and the accused wherein necessary conditions were stipulated, which reads as under: “1. The Parties will act in Consortium to submit the Bid to the Client when required and will if such bid is successful, negotiate Works contract with the Client with joint and several responsibility for the execution of the Project. 2. M/s. SKENAL SYSTEMS will be the Lead Partner and as such will act as spokesman of the Consortium, represent the Consortium in all decision making including signing any of project, works contract’s bidding documents, resultant works contract papers and any other papers whatsoever pertaining to the same. Acing in accordance with the instructions and approval of the other Party, M/S SKENAL SYSTEMS will lead the negotiations with the client WRD-BIHAR. 3. For the purpose of preparing the Consortium Bid the Parties will agree upon a detailed spit of works and responsibilities in accordance with this agreement as per the scope of works/supplies as detailed below. Lead Partner M/s. SKENAL SYSTEMS will provide flow charts, SCADA Screen details, Cable Laying, Termination within the field, carry out any Civil and/or Electrical and/or mechanical works as per tender or repairing, up-gradation, modification work at barrage site as per item Gr No. B9i) of the tender documents and co-ordination with the client. JV Partner M/s. ELECTRONIC SYSTEMS to supply all the requisite bill of materials as per as may be necessary to complete the work, including PLC and SCADA software developments, trials simulation and commissioning of the whole system as covered under Item B(ii) to the entire satisfaction of the client with support/co-ordination of Lead partner. 4. The Parties will prepare at their geninter-party cast offers on the basis required for that part of the work agreed to be their responsibility and will co-ordinate their representations through the Proposal Manager in a form to be mutually agreed. 5. The Parties shall also agree for what guarantees or indemnities if any may be necessary to support the Parties obligations to the Client's defined requirements. Any bonds, guarantees or other similar obligations required by the Client to be given by bankers and other financial institutions shall be arranged by the Lead Partner. 6. 5. The Parties shall also agree for what guarantees or indemnities if any may be necessary to support the Parties obligations to the Client's defined requirements. Any bonds, guarantees or other similar obligations required by the Client to be given by bankers and other financial institutions shall be arranged by the Lead Partner. 6. It is the intention of the Parties to specifically limit the total liability applying to the resultant Works Contract in relation to the major works assigned to the JV Partner M/s. ELECTRONIC SYSTEMS to supply and successful commissioning of the PLC and HMI SCADA associated HARDWARE as well as SOFTWARE at each designated locations. 7. In the event that Consortium enters into the Contract then each Party shall perform his own Scope of Works in accordance with the terms and conditions of the Contract. 8. Each Participant shall provide all supplies and services and carry out all work required for proper fulfillment of its Scope of Work, Irrespective of whether or not such work supplies and services are therein fully specified and described. 9. Notwithstanding anything else stated herein or in the Contract, the Participants agree to act severally with respect to each other in the performance of the Contract and be solely responsible for the sufficiency of their own estimates of costs and time related to their own Scope of Work. 10. Each Participant shall be under an obligation to the other Participant to schedule, plan and execute his own Scope of Work in a manner such that it facilitates the work of the other Participant and allows both Participants jointly to fulfill the obligations to the Client assumed under the Contract in a timely and cost effective manner. 11. The Lead Partner shall be responsible for arranging any bonds or guarantees required in connection with the Contract. 12 The Lead Partner shall be responsible for coordinating arrangements for the provision of insurances as required by the Contract and as agreed by the Parties to be necessary, and for the payment of premiums the cost of which will be born by Lead partner. 13. 12 The Lead Partner shall be responsible for coordinating arrangements for the provision of insurances as required by the Contract and as agreed by the Parties to be necessary, and for the payment of premiums the cost of which will be born by Lead partner. 13. This Agreement constitutes the entire Agreement relating to the Consortium between the Parties pertaining to the Project and supersedes all prior agreements, understanding, negotiations and discussions, whether oral or written, of the Parties and there are no warranties, representations or other agreements between the Parties in connection with the Project except as specifically set forth herein. 5.2 Mr. Majmudar, learned counsel has submitted that in response thereto, there are several communications between the complainant and the accused and emails were also produced on record, however, the trial Court has completely ignored and overlooked the said facts while passing the impugned judgment and order of acquittal in favour of the accused. According to Mr. Majmudar, learned counsel, the complainant issued legal notice dated 28.08.2011 on receipt of written memo of disputed cheque in question issued by the Bank with an endorsement of stop payment and under such circumstances, the trial Court has failed to draw the inference against the accused as provided under Section 139 of the N.I. Act and since the accused has failed to establish the said fact by leading any evidence or without stabbing into the witness box has not shifted the burden to prove the fact, but the trial Court has not considered such fact. 5.3 Mr. Majmudar, learned counsel has referred to and relied upon the notice dated 26.09.2011 issued by the complainant. The relevant contents of the said notice reads as under: “That you were awarded work for Renovation and Automation Work of 66 Nos. of Koshi Barrage Gates at Patna, Bihar. That you had sub contracted a part of the scope of work in favour of our client vide Purchase Order No. PO:SS:26:09 dated 28.12.2009 for the work as detailed in the said purchase order. That you had in discharge of your obligations for payment in part in relation to the scope of work under this contract, drawn a cheque No. 202570 dated 30.03.2011 for Rs. 30,00,000.00 (Rupees Thirty Lakhs Only), from the firm's account, on Central Bank of India, Subhanpura Branch, Vadodara. That you had in discharge of your obligations for payment in part in relation to the scope of work under this contract, drawn a cheque No. 202570 dated 30.03.2011 for Rs. 30,00,000.00 (Rupees Thirty Lakhs Only), from the firm's account, on Central Bank of India, Subhanpura Branch, Vadodara. That on presentment of the said cheque, the cheque was not honoured by your bankers for the reason “Payment Stopped by Drawer.” That our client was informed about the said dishnour vide their Banker's memorandum dated 10.09.2011.” 5.4 Mr. Majmudar, learned counsel has submitted that the accused has given the reply dated 14.10.2011 to the notice dated 26.09.2011. The contents of the reply reads as under: “1. That content of your notice are not true and correct hence is not acceptable to my client. 2. That unless specifically admitted, my client denies all the everment and content of your notice in toto. 3. That no cause of action has been arisen in your favor to serve such type of notice hence it is bad in law. Othervise your notice is barred by limitation hence it is null and void. 4. That to misuse the provision of law you had intentionally suppressed/altered/fabricated the material and real fact in your notice, hence your notice is bad in law. 5. That my client denies of having been committed any offence or offensive act more particularly u/s. 420 or 406 of Indian Penal Code or u/s. 138 of the Negotiable Instrument Act. 6. That cheque in question was never drawn with an intention of making any payment of existing liability or debt on part of my client hence no cause of action has been accrued in your favor to prosecute my client u/s 138 of N.I. Act. 7. That cheque in question is not dishonored for insufficient fund in the bank account of my client; hence it does not make out any offence u/s 138 of the N.I. Act. 8. That cheque in question is not dishonored for any legal reason incorporated in N.I. Act; hence no cause of action has arise in your favor to serve such type of notice to my client or to prosecute him u/s. 138 of the N.I. Act. 9. 8. That cheque in question is not dishonored for any legal reason incorporated in N.I. Act; hence no cause of action has arise in your favor to serve such type of notice to my client or to prosecute him u/s. 138 of the N.I. Act. 9. That though it was within your knowledge that instrument was placed in your possession for security only and my client has instructed his banker to stop the payment of the cheque in question and you are not having any right to deposit the cheque placed in your possession for acceptance with an ulterior motive to misuse the instrument in your possession and by doing do to pressurize my client, for payment of money which you are legally not entitled to ask/charge/demand/recovered from my client, you had deposited the cheque in question, without having any right to do so. 10. That you had served notice in question to M/s. Skenal Systems as Notice No. 1. You are aware of the fact that M/s. Skenal Systems is not legal entity and is not having existence in the eyes of law. Hence your act of service of notice to non existing entity is bad in law. 11. That you had served your notice u/s. 138 & 306 & 420 of the Negotiable Instrument Act. Negotiable Instrument Act does not contain sec 406 & 420. Hence, your notice in question is misconceives and bad in law. 12. That it is true and correct to say that yours is a Partnership Firm, having its office at the address mentioned in notice and is engaged in the business of manufacture of Battery Chargers, Static Excitation/AVR Panels, Control & Relay Panels, LT Panels and PLC/SCADA Panels. 13. That it is true to say that noticee no. 1 is a Propitiatory concern having office at the address mentioned in notice and Mr. N.K. Vadgama is the Proprietor - of said concern. 14. It is true to say that my client's concern was awarded work for Renovation and Automation Work of 66 Nos. of Koshi Barrage Gates at Birpur (Dist. I had sub Supaul-Bihar) and Monitoring contracted a port of the scope of work to you vide Purchase order No. PO:55:26:09 dated 28.12.2009 for the work as detailed in the said purchase order. 15. of Koshi Barrage Gates at Birpur (Dist. I had sub Supaul-Bihar) and Monitoring contracted a port of the scope of work to you vide Purchase order No. PO:55:26:09 dated 28.12.2009 for the work as detailed in the said purchase order. 15. That it is not true and correct to say that in discharge of our obligations for payment in part in relation to the scope of work under contract, we had drawn a cheque No. 202570 dated 30.03.2011 for Rs. 30,00,000.00 (Rupees Thirty Lakhs Only), from the firm's account on Central Bank Of India, Subhanpura Branch, Vadodara. You are aware of the fact that work which was accepted by us and assigned to you was a work of public importance and was time bound contract which was to be completed within stipulated time period. The work of supply and installation of various electrical and electronic components and commissioning of the same was assigned to you. As this work was to be completed within given time period, instrument in question was entrusted as a security only and for that reason only you had not deposited the same on due date and after that. 16. It is not true and correct to say that the said cheque was presented within its validity period with your bankers Kotak Mahindra Bank Ltd., Baroda. As stated above you were not having any right to use and deposit the cheque for acceptance, hence your act of depositing the cheque is illegal and bad in law. 17. 16. It is not true and correct to say that the said cheque was presented within its validity period with your bankers Kotak Mahindra Bank Ltd., Baroda. As stated above you were not having any right to use and deposit the cheque for acceptance, hence your act of depositing the cheque is illegal and bad in law. 17. It is true to say that on presentment of the said cheque the cheque was not honored by our bankers for the reason “Payment Stopped by Drawer.” The fact that long back we had instructed our bank to stop the payment of the said cheque was within your knowledge and as you had committed breach of contract and had short supplied material and supplied material which was not ordered for and required for project work and your failure to test the material supplied within time period and supply of non standard material and failure to provide after sales service and maintenance was within the knowledge of concern department of Bihar Government, which has caused great loss to us and department has not paid the amount to us-- and deducted the handsome amount as against time delay and for your negligence we were ordered to be black listed as a contractor for Bihar Government. That it is not true and correct to say that you were informed about the said dishonor vide Banker's memorandum dated 10.09.2011. This is to inform you that there was sufficient balance in our bank account to honor the cheque in question. 18. It is not true and correct to say that we had malafidely and intentionally issued the said cheque knowing full well that the said cheque will not be honored. As stated above there was sufficient balance in the sald bank account to honor the cheque in question. It is not true and correct to say that we are thus liable to be prosecuted U/s 138(b) of the N.I. Act. 19. It is not true and correct to say that we had committed an offence under Sections 406 & 420 of the I.P.C. and had cheated and deceived you. It is not true and correct to say that we had given assurance of making the said payment and that the cheque would be honored on presentation. It is not correct to say that we had committed criminal breach of trust reposed by you. It is not true and correct to say that we had given assurance of making the said payment and that the cheque would be honored on presentation. It is not correct to say that we had committed criminal breach of trust reposed by you. Considering the fact and circumstances and provision of law it is clear that no cause of action has been aroused in your favor to prosecute us under any provision of any law of India. 20. Considering the fact and circumstances you are not having any legal right to demand and there is no legal obligation on our part to make payment of Rs. 30,00,000,00 (Rupees Thirty Lakhs Only) to you. 21. That no cause of action has been arisen in your favour to prosecute us u/s 138 of NI Act or u/s 406 Or 420 of IPC. 22. That this is true and correct reply of your notice, and even after that you will initiate any illegal and unwarranted proceedings' against us, with ulterior motive to pressurized us, same shall be defended by us, at your cost and you shall be responsible for consequences thereof. 23. The reply-rejoinder is served to you reserving our legal right to initiate legal proceeding against you for the act of breach of the trust and cheating and acting contrary to the terms and provision of contract and thereby causing damage and loss to our business and reputation.” 5.5 Mr. Majmudar, learned counsel has submitted that the contents of the complaint was proved by oral evidence of the authorized officer of the complainant and the accused has not controverted the said presumption as provided under Section 139 of the N.I. Act and, therefore, the accused has failed to discharge all debt or liability by proving the initial burden by leading any cogent and material evidence and, therefore, the present application for leave to appeal deserves to be allowed. 5.6 In support of his submissions, Mr. Majmudar, learned counsel has relied upon the decision of the Hon’ble Supreme Court in the case of Kishan Rao Vs. 5.6 In support of his submissions, Mr. Majmudar, learned counsel has relied upon the decision of the Hon’ble Supreme Court in the case of Kishan Rao Vs. Shankargouda, (2018) 8 SSC 165 mainly on the ground that the accused has not adduced any evidence to rebut the presumption under Section 139 of the N.I. Act but mere denial regarding existence of legal enforceable debt shall not serve any purpose and in the event accused is able to raise a probable defence which creates doubt with regard to existence of the debt or liability and the presumption was failed. 6. The Hon’ble Supreme Court in the case of Kishan Rao (supra) has held and observed in Para-18 to 22 as under: “18. Section 139 of the Act, 1881 provides for drawing the presumption in favour of holder. Section 139 is to the following effect: “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.” 19. This Court in Kumar Exports vs. Sharma Carpets, 2009 (2) SCC 513 , had considered the provisions of Negotiable Instruments Act as well Evidence Act. Referring to Section 139, this Court laid down following in paragraphs 14, 15, 18 and 19: (SCC pp. 519-520) “14. Section 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 the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. 15. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) “may presume” (rebuttable), (2) “shall presume” (rebuttable) and (3) “conclusive presumptions” (irrebuttable). Under the Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) “may presume” (rebuttable), (2) “shall presume” (rebuttable) and (3) “conclusive presumptions” (irrebuttable). The term “presumption” is used to designate an inference, affirmative or disaffirmative of the existence of a fact, conveniently called the “presumed fact” drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means “taking as true without examination or proof.” *** *** *** 18. Applying the definition of the word “proved” in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase “until the contrary is proved” in Section 118 of the Act and use of the words “unless the contrary is proved” in Section 139 of the Act read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebut table. When a presumption is rebut table, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.” 20. This Court held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose. Following was held in paragraph 20: “20....The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.....” 21. In the present case, the trial court as well as the Appellate Court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank of the presumption under Section 139 was rightly raised which was not rebutted by the accused. The accused had not led any evidence to rebut the aforesaid presumption. The accused even did not come in the witness box to support his case. In the reply to the notice which was given by the appellant the accused took the defence that the cheque was stolen by the appellant. The said defence was rejected by the trial court after considering the evidence on record with regard to which no contrary view has also been expressed by the High Court. 22. In the reply to the notice which was given by the appellant the accused took the defence that the cheque was stolen by the appellant. The said defence was rejected by the trial court after considering the evidence on record with regard to which no contrary view has also been expressed by the High Court. 22. Another judgment which needs to be looked into is Rangappa vs. Sri Mohan, 2010 (11) SCC 441 . A three Judge Bench of this Court had occasion to examine the presumption under Section 139 of the Act, 1881. This Court in the aforesaid case has held that in the event the accused is able to raise a probable defence which creates doubt with regard to the existence of a debt or liability, the presumption may fail. Following was laid down in paragraphs 26 and 27: “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 , 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 rebut table 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. 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof.” 7. Per contra, Mr. Sejpal, learned counsel appearing for the accused has vehemently objected the grant of leave to appeal. He has referred to and relied upon the reply filed by the accused to the notice and submitted that from the reply it is clear that there was no any legal enforceable debt against the accused and was not proved the same by any cogent and material evidence by the complainant and even the said fact is further strengthened from the cross-examination of the witness Ketan Kanubhai Shah at Exhibit 69, which reads thus: “It is true that his name was not mentioned anywhere in the complaint at Exhibit 1 and he was not mentioned as a witness. It is true that present affidavit of investigation has been given on the basis of the evidence given by the complainant Nimeshbhai Sadia. It is true that the present affidavit of examination has been prepared by his advocate. It is true that the facts which remained in the complaint were mentioned in the present cross-examination. It is not true that the amount of the cheque in question was given as an advance to the joint venture consortium of his company. It is not true that the company had issued the cheque to the complainant as project advance. It is true that as stated in his current affidavit of examination, the project advance money has been demanded. It is not true that the disputed cheque was given on demand for an amount of E.M.D. It is not true that as stated in Para 7 of the examination-in-chief, on making the request of the accused, the appellant company transferred the amount of rupees thirty lakhs to the newly opened bank account. It is not true that the complainant's cheque was issued in pursuance of the joint venture agreement entered into between the complainant and the accused. It is not true that the complainant's cheque was issued in pursuance of the joint venture agreement entered into between the complainant and the accused. It is true that the accused has not produced any evidence in the record of the case with regard to cancellation of the joint venture. It is true that the disputed cheque was issued under settlement of account. It is true that on the day when the impugned cheque was deposited in the bank, the accounts of the accused and the complainant were not settled. It is true that the complainant's cheque was in possession of the company for a long time.' It is true that the letters were written by the company to the Bihar Government, who have project, to pay the amount of the impugned cheque and through those letters also requesting to pay amount other than the amount of the impugned cheque. It is not true that the impugned cheque was not issued against the non-existent debt of the firm. It is not true that they have presented the cheque without authority even if the time limit of the cheque was is over. It is not true that they have been produced as witnesses to support their false case.” 7.1 Mr. Sejpal, learned counsel has submitted that after concluding arguments, the applicant himself has produced email communication dated 06.05.2011 at Exhibit 99 sent by accused to one Ashwin Kamath, Officer of Koshi Project whereby the accused has pointed out as many as 35 reasons because of the work could not be completed and the complainant has specifically mentioned as many as 11 infirmities. He has submitted that the application being meritless deserves to be rejected. 8. It is to be noted that in the said e-mail, the accused have categorically mentioned that merely the applicant initially sent Rs. 30,00,000/- which was returned back by the accused on 27.04.2010. The facts of the complainant supplied at the initial and final stages are as under: “1. Against 66 Nos. ES supplied only 46 (Forty Six) Nos. of CRPs-Control Room Panels vide ES Invoice 160 Dated 13/03/2010 (20 Nos. were short supplied and no payment can be released by GoB). 2. ES supplied Software (but without PCP-Personal Computer Panel) and charged too vide above ES Invoice 160 Dated 13/03/2010 (PCP was short supplied and no payment can be released by GoB). 3. of CRPs-Control Room Panels vide ES Invoice 160 Dated 13/03/2010 (20 Nos. were short supplied and no payment can be released by GoB). 2. ES supplied Software (but without PCP-Personal Computer Panel) and charged too vide above ES Invoice 160 Dated 13/03/2010 (PCP was short supplied and no payment can be released by GoB). 3. Vide the same Invoice 160 Dated 13/03/2010, Data Radio with Antenna were supplied but they have not been commissioned as on the date (6th May 2011) hereof. (Not commissioned and hence no payment can be released by GoB). 4. 20 Nos. of CRPs (remaining quantities w.r.t. 1 above and PCP (Computer to load Software as per 2 above) were supplied vide ES invoice 11 Dated 4th May 2010. 5. Against wholly supplied item now w.r.t. items 1 and 2 (but (Two) Nos. of Laptops for site were still short supplied alongwith item 2 (PCP) above, SS paid Rs. 15 Lacs on 26th June 2010. 6. Only 15 (Fifteen) Nos. of PPs-Platform Panels were supplied against 66 Nos. vide ES Invoice No. 23 Dated 5th June 2010 (51 Nos. were short supplied and no payment can be released by GoB). 7. Vide the same ES Invoice No. 23 Dated 5th June 201, PSs-Proximity Switches were supplied instead of ATs - Absolute Transducers (no supply of 66 Nos. of ATs & no payment can be released by GoB). 8. Vide ES Invoice No. 23 Dated 5th June 201, LSs-Limit Switches (for IPs-Intermediate Positions) were supplied while but the IPs were programmed through PLC. 9. Vide ES Invoice No. 24 Dated 5th June 201, PCP for Patna HQ-Head Quarter was supplied (that too without 2 (Two) Nos. of Laptops for Patna HQ were still short supplied alongwith this PCP), but it was very much clear that Patna HQ works can be started only after completing the whole task at site (no supply of 66 Nos. of ATs & no payment can be released by GoB). 10. Requisite quantities of Cables and Glands for ES works, were purchased by 55 on behalf of ES for the following Invoices: (a) Green Electricals for Cables: Invoice No. 120 Dated 17th July 2010 for Rs. 1,08,647/- (b) Green Electricals for Cables: Invoice No. 121 Dated 17 July 2010 for Rs. 88,880/- (c) Green Electricals for Cables: Invoice No. 120 Dated 17 July 2010 for Rs. 1,08,647/- (b) Green Electricals for Cables: Invoice No. 121 Dated 17 July 2010 for Rs. 88,880/- (c) Green Electricals for Cables: Invoice No. 120 Dated 17 July 2010 for Rs. 3,46,083/- (d) Skyward Associates for Glands & Junction Boxes Dated 20 July 2010 for Rs. 78,540/- Deductions while paying to ES Rs. 6,22,150/- 11. ES Invoices totalling (Nos. 11, 23 & 24) comes to Rs. 45,67,631/- (While not at all deducting: (1) Rs. 91,500/- against Data Radio, (2) Around Rs. 1 Lac against Site's 2 Nos. of Laptops (3) Rs. 6,60,000/- against 66 Nos, of PSs (4) Rs. 42,900/- against 66 Nos. of LSs, (5) Around Rs. 1 Lac, (6) Applicable All the Taxes etc, on above (1) to (5) Items and lastly (7) Rs. 6,22,150/- as per Point No. 10 above) 12. SS however dated 6th July 2010, paid to ES Rs. 50,00,000/- against Rs. 45,67,631/- (without having considered the above listed deductions (1) to (7). Amount paid by SS to ES is higher than the amount to pay and much more higher than the amount to pay while considering the above deductions (1) to (7). 13. Even then ES unreasonably asked to pay Rs. 6 Lacs for advance against VSAT Equipment which was paid on 14 August 2010 in addition to the Extra Amount to ES w.r.t. Deductions as per Point No. 11. 14. ES to furnish the exact amount of deductions (1) to (7). 15. The next supply of 51 Nos. of PPs came vide ES Invoice No. 42 Dated 22 July 2010 for Rs. 64,51,094/- and thus completed the whole supply of PPs of 66 Nos, but these are not at all yet commissioned and hence no payment as on the date (6th May 2011) hereof. 16. The commissioning of these PPs are still going on, as on the date hereof (6th May 2011), and not a single GCRGate Commissioning Report has been submitted by ES while Irrigation Dept. of GoB is constantly asking for Gatewise 66 Nos. of such GCRs for further release of payment. 17. ES supplied CRPDP- Control Room Power Distribution Panel vide ES Invoice No. 77 Dated 2 October 2010 for Rs. 1,68,759/- and both VSATs-Very Small Aperture Terminals vide ES Invoice No. 78 Dated 20 October 2010 for Rs. 27,09,144/- (Totalling Rs. 28,77,903/-). 18. However, SS Paid Rs. of such GCRs for further release of payment. 17. ES supplied CRPDP- Control Room Power Distribution Panel vide ES Invoice No. 77 Dated 2 October 2010 for Rs. 1,68,759/- and both VSATs-Very Small Aperture Terminals vide ES Invoice No. 78 Dated 20 October 2010 for Rs. 27,09,144/- (Totalling Rs. 28,77,903/-). 18. However, SS Paid Rs. 30 Lacs on 20th September 2010 with an expectation to complete allthe works by all the means. With this, the Total outstanding amount remained at Rs. 52,75,890/- as on 20 Sept. 2010, and that too without deductions as per Point No. 11 above. (1) to (7). 19. ES to confirm the exact amount of deductions as per point No. 11 above. 20. Atleast Tens of letters of the said Department, have been submitted to ES as well as Ketan has also talked to Chief Engineer and he has clearly told Ketan that without those GCRs and completion of works together with the demonstration of all the SCREENS/DATA (which must be replicas of the same which are available at Site) for monitoring at Patna. Few of them are attached herewith for your ready references. 21. Ketan was very much present at the time of visit of honourable Minister and Principle Secretariat and knows the conversations both these VIPs had jointly with the Chief Engineer (Patna) as well as EE - Executive Engineer (Birpur) that all work musts be completed before 30 April 2011. 22. Taking advantage of this deadline, ES also demanded the PDC-Post Dated Cheque of Rs. 30 Lacs with the date Insertion as 30 April 2011 (though it was not at all the term agreed upon while awarding the order by SS to ES and acceptance of the same by ES). 23. ES also un-reasonably demanded current dated payment and SS Paid Rs. 40 Lacs (1525) in presence of common friend of SS as well as ES on 25th March 2011. 24. Thus the total of Rs. 70 Lacs were demanded by ES instead of bothering about the deductions as per Point No. 11 and in the interest of the completion of the works, 55 paid the same which is much more than that of the outstanding amount of Rs. 52,75,890/- 25. 24. Thus the total of Rs. 70 Lacs were demanded by ES instead of bothering about the deductions as per Point No. 11 and in the interest of the completion of the works, 55 paid the same which is much more than that of the outstanding amount of Rs. 52,75,890/- 25. However, the undersigned was waiting for immediate actions by ES at Site and Patna H.Q. to complete the work by all means but there was no movement from ES end again and ES representatives disappeared from Patna itself without any prior information SS. 26. However, live monitoring never appeared at Patna H.Q. for looking the replica of SCREENS and DATA which were there at site during that time as was promised by ES while the same situation remained as it was with no Iive monitoring at Patna as on the date hereof (6th May 2011). 27. E-mailed scanned images of various letters from EEExecutive Engineer and telephone conversations Ketan had with CE - Chief Engineer on 22 April 2011 clears the fact that without commissibhing at site and also at Patna, no payment will be released. While not uttering a single word about this situation and pending works of ES at both the places, ES simply messaging about payment with an insistence to deposit and en-cash PDC. 28. 55 have repeatedly asked also for the documentation as per the tender specified requirements of the same Copy of the list of documents, is already with ES) and without which we face lot of trouble in Gate's operations at Site particularly when something malfunctions. 29. The question of depositing the PDC does not arise as contrary to the ES claimed outstanding, the grabbed amount is much higher than the outstanding one while there is not a single step taken forward for solving the problems and depositing the required documentation as well as Commissioning Reports. 30. Thus the major pending works by ES are submission of Gatewise 66 Nos. of Commissioning Reports, handingover these Gates to Civil Dept. in presence of Mech. Dept., live monitoring of replica of SCREENS/DATA at Patna H.Q. which are available there at site at that time and finally Commissioning Report of Monitoring Station at Patna HQ. 31. 30. Thus the major pending works by ES are submission of Gatewise 66 Nos. of Commissioning Reports, handingover these Gates to Civil Dept. in presence of Mech. Dept., live monitoring of replica of SCREENS/DATA at Patna H.Q. which are available there at site at that time and finally Commissioning Report of Monitoring Station at Patna HQ. 31. With these kind of approaches by ES (Just to go on asking for funding and not at all uttering a word about their failures to complete the work by all means, we afraid for their agreed term for the O&M (OPERATION & MAITHENANCE) AGREEMENT - MAINTENANCE SUPPORT FOR (3) THREE YEARS FROM THE DATE OF COMMISSIONING OF THE COMPLETE SYSTEM BY YOUR TEAM OF HARDWARE AND SOFTWARE ENGINEERS AT SITE IN NEPAL AS WELL AS AT PATNA. 32. E5 is supposed to return back the PDC and also should furnish us the BG-BANK GUARANTEE as may be decided jointly by ES as well as SS. If ES is not ready to give the BG, GE must allow any of their other Channel Partner.” 9. The documents which are subsequently tendered by the complainant itself speaks that since the financial settlement was not made till date, the cheque was given for the purpose of settlement. Though the accused has given specific instruction to the complainant that not to deposit the said cheque till the final settlement arrived at between the parties and with the State Government, Bihar in relation to the work contract allotted to accused, however, the complainant has deposited the said cheque. In the cross-examination, a specific question was asked to the complainant about the aforesaid aspect, he has admitted in his cross-examination that the cheque was given for the purpose of settlement and till date the settlement was not arrived at and, therefore, till the final settlement arrived at between the parties, there is no question of any legal enforceable debt against the accused. In view of this fact, the trial Court has not committed any error of law and facts in passing the impugned judgment and order of acquittal. In view of this fact, the trial Court has not committed any error of law and facts in passing the impugned judgment and order of acquittal. In fact, on account of non-cooperation on the part of the complainant, the accused could not complete the work contract within time and, therefore, they were black listed in the State of Bihar and due to that reason, the accused occurred huge loss and hence, the accused has filed civil suit for damage which is at present pending before the Civil Court. It appears that instead of arbitration for execution of the agreement executed between the parties and without going to the Civil Court, the applicant has misused the cheque, which was in his custody. Prima facie, the complainant has failed to prove the fact that there is any legal enforceable debt on the part of the accused. 10. In the case of Kishan Rao (supra), the Hon’ble Supreme Court has laid down the principle, which is well settled and subsequently, the Hon’ble Apex Court has reiterated the same in the case of Rajaram S/o Sriramulu Naidu (Since Deceased) through LRs. Vs. Maruthachalam (Since Deceased) through LRs. AIR 2023 SC 471 . Even the principle curved out by the Hon’ble Supreme Court in the case of Dattatraya Vs. Sharanappa, (2024) 8 SCC 573 wherein the Hon’ble Supreme Court has referred to its decision in the case of Rangappa Vs. Sri Mohan reported in (2010) 11 SCC 441 . 11. It is worthwhile to refer to Sections 118 and 139 of the N.I. Act, which reads thus: “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 naturity. (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 naturity. (e) as to order of indorsements: that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on. (f) as to stamp: 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 instrutment 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. 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 section138 for the discharge, in whole or in part, of any debt or other liability.” 12. In the case of Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Limited, (2016) 10 SCC 458 , the Hon’ble Supreme Court has held and observed in Para-10 as under: “10. Reference to the facts of the present case clearly shows that though the word “security” is used in clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. It is undisputed that the loan was duly disbursed on 28th February, 2002 which was prior to the date of the cheques. Once the loan was disbursed and installments have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability.” 12.1 It is profitable to refer to the decision of the Hon’ble Supreme Court in the case of Krishna Janardhan Bhat Vs. The cheques undoubtedly represent the outstanding liability.” 12.1 It is profitable to refer to the decision of the Hon’ble Supreme Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, (2008) 4 SCC 54 wherein the Hon’ble Supreme Court has held and observed in Para-20, 21, 23, 24, 25, 26, 27 and 33 as under: “20. The appellate court took an identical stand. It proceeded on the premise that the statement of accused u/s. 313 of the Code of Criminal Procedure regarding misuse of blank cheque by the complainant and filling up Rs. 1,50,000.00 instead of Rs. 1500.00 is contradictory to his own admission in the reply to the notice issued to him. 21. On what basis the said opinion was formed is not known. The appellate court refused to enter into the question as to whether the prosecution case is wholly unreliable, as the complainant had not been able to show his source of income so as to enable him to advance a huge loan of Rs. 1,50,000.00, holding: “Now as far as the financial ability of the complainant to issue cheque for such huge amount to the accused is not a matter to be considered by the trial court or by me also since issue of Ex.P.1 and its dishonour is proved by the complainant beyond reasonable doubt.” 23. Before embarking upon the legal issues, we may analyse the deposition of PW-1 Complainant. He was a resident of village Goddalmane. Appellant is a resident of village Kekkar. As he was running an industry at Hubli, he sometimes resided in Hubli also. They were said to be friends. He asked him to give a loan of Rs. 1.5 lakhs in the first week of June, 1998 and the amount was handed over to him on 14th June, 1998. It was allegedly agreed that on the appellant's failure to repay the said loan within one month, 15% interest would be charged. No document was executed; no pronote was executed; no receipt was obtained. Appellant is said to have come to his house suo moto on 20.07.1998 and handed over the cheque which was sent to Varada Grameen Bank for collection whereupon notice had been issued. Despite the fact that he was aware that a dispute had been raised in regard to the writings in the cheque, the same was not proved. Appellant is said to have come to his house suo moto on 20.07.1998 and handed over the cheque which was sent to Varada Grameen Bank for collection whereupon notice had been issued. Despite the fact that he was aware that a dispute had been raised in regard to the writings in the cheque, the same was not proved. Merely, the cheque was tendered and it was marked as an exhibit. The cheque appears to have been issued as a proprietor of a business concern. 24. Despite the fact that R.G. Bhat was his brother-in-law, he denied that he was running the said business. He also feigned his ignorance as to whether the said industry was being run by R.G. Bhat on the basis of the Power of Attorney executed by the appellant. He, however, accepted that they had been running it together. He also accepted the relationship between him and R.G. Bhat. He knew about the dispute. He accepted that a panchayat meeting was held in regard thereto. Surprisingly, he denied his knowledge in regard to the existence of the power of attorney stating that the same was not made in his presence. He admitted that he was present on 2.10.1996 in the panchayat meeting to resolve the problem arising out of the dispute between R.G. Bhat and the appellant. He accepted that wooden and steel materials were placed in Vinay Enterprises and R.G. Bhat had been running the same type of industry in Tarihal Industrial Estate. According to him, he had been running such an industry in the name of Prasad Enterprises even prior to 1996. His acquaintance, according to him, with the appellant was only through his brother-in-law. He did not say that he had friendship with the appellant. There also does not appear to be any business transactions between them. He could not state about the denomination of the notes although according to him he had drawn the amount from the society. 25. He did not produce any books of accounts or any other proof to show that he got so much money from the bank. He admittedly did not have any written document pertaining to the accused. He accepted that there was no witness to the transaction. 25. He did not produce any books of accounts or any other proof to show that he got so much money from the bank. He admittedly did not have any written document pertaining to the accused. He accepted that there was no witness to the transaction. He, of course, denied certain suggestions, but the suggestions put to him were required to be considered by the court below in the backdrop of the facts and circumstances of the case. 26. The courts below failed to notice that ordinarily in terms of Sec. 269SS of the Income Tax Act, any advance taken by way of any loan of more than Rs. 20,000.00 was to be made by way of an account payee cheque only. Section 271D of the Income Tax Act reads as under: “271D. Penalty for failure to comply with the provisions of Sec. 269SS. (1) If a person takes or accepts any loan or deposit in contravention of the provisions of sec. 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted. (2) Any penalty imposable under sub-sec. (1) shall be imposed by the Joint Commissioner.” 33. In Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Payrelal, (1999) 3 SCC 35 interpreting Sec. 118(a) of the Act, this Court opined: “Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption u/s. 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising u/s. 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.” [Emphasis supplied] 12.2 It is also profitable to refer to the decision of this Court in the case of Shaikh Yusufkhan Hamidkhan Vs. State of Gujarat, 2021 (4) GLR 3121 wherein this Court has held and observed in Para-5 as under: “5. It is further pertinent to note that the applicant-complainant in his cross-examination recorded on 01.07.2017 had also admitted that he had not made any transaction with the accused and that there was no legally recoverable debt from the accused. An evidence with regard to the legally enforceable debt being one of the main ingredients to constitute the offence under Section 138 of the said Act, and in the instant case, the complainant himself having admitted that there was no legally enforceable debt, which could be recovered from the accused, the offence under Section 138 could not be said to have been made out. The proviso appended to the said section provides for compliance of the legal requirements before a complaint could be acted upon by the Court of law. It is well settled legal position that Section 139 of the said Act merely raises a presumption in regard to the second aspect of the matter. The existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or any other liability. The existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or any other liability. It is also needless to say that the presumption under Section 139 of the said Act is rebbutable. Beneficial reference of the decisions in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, (2008) 4 SCC 54 , in case of Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 and in case of Basalingappa Vs. Mudibasappa, (2019) 5 SCC 418 be made in this regard.” 13. Beneficial reference of the decisions in the case of Basalingappa Vs. Mudibasappa, (2019) 5 SCC 418 and Bir Singh Vs. Mukesh Kumar, 2019 (1) GLH 338 , in the case of Jain P. Jose Vs. Santosh and Another, 2022 Law Suit SC 1378. 14. It is the case of the accused that the cheque was given as security towards the final settlement which was admitted by the complainant in his evidence and unless and until there was final settlement arrived at between the parties and the final liability is fasten, the complainant ought not to have deposited the said cheque, which was given by the accused. Since the work contract allocated to the accused, the complainant is jointly liable and responsible for the delay of work due to non-cooperation and non-commitment to the work. Under such circumstances, unless and until there is any final liability fasten against the accused, there is no question of any legal enforceable debt against the accused. From the evidence of the complainant, it appears that he has proved the said fact and, therefore, it is well settled that the complainant need not to produce any oral as well as documentary evidence. 15. Now, on perusal of the impugned judgment and order, it appears that while scrutinizing the entire evidence on record, the trial Court has specifically considered that there is no iota of evidence in connecting the present accused with the alleged offences. It also appears that the trial Court has properly considered the entire evidence on record in its proper perspective and its finding is proper one and when there is acquittal appeal, the impugned judgment and order of acquittal does not warrant interference by this Court. 16. It also appears that the trial Court has properly considered the entire evidence on record in its proper perspective and its finding is proper one and when there is acquittal appeal, the impugned judgment and order of acquittal does not warrant interference by this Court. 16. In view of the above, the present application for leave to appeal is devoid of merits and it deserves to be dismissed. Hence, the application for leave to appeal is hereby dismissed. 17. In view of the dismissal of the application for leave to appeal, the appeal does not survive and accordingly, it is dismissed. The record and proceedings be transmit back to the concerned trial Court forthwith.