JUDGMENT : 1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C. referred hereinafter) challenging the judgment and order of the acquittal passed by the learned 2nd Additional Chief Judicial Magistrate, Himmatnagar at Sabarkantha in Criminal Case No.6123 of 2013 below Exhibit 117 dated 24.08.2023, whereby the respondent-accused was acquitted from the charges under Section 138 of the N.I.Act. 2. Brief facts of the present case in a capsulized form are as follow: 2.1. It is the case of the complainant that the complainant and the accused were belonging from the same village and they were friends and having homely relations with each other. On sudden needs of the money, the respondent-accused came to the house of the complainant on 13.01.2013 and demanded the amount of Rs.3 Lakh. The complainant from his saving as well as after arranging the fund from the family members as well as the friends has lent the amount of Rs.2,49,999/to the respondent-accused. On being repeated demand, cheque bearing No.228327 of Sabarkantha District Central Cooperative Bank, Raygadh Branch for the amount of Rs.2,49,999/was issued in favour of the complainant dated 01.05.2013. 2.2. On depositing the said cheque on 12.07.2013 same was returned with an endorsement of ‘fund insufficient’, ‘signature differ’, ‘the stamp of the firm is missing’. On receiving the return memo, demand notice was issued below Exhibit 20. As the demand notice was neither replied nor complied, therefore, private complaint came to be filed before the competent Court. The accused came to be appeared before the learned trial Court and his plea was recorded wherein the accused pleaded not guilty and claimed to be tried. 2.3. To prove the guilt of the accused, the complainant had examined himself below Exhibit 60 and the Bank officer at Exhibit 66. Further the documentary evidence in the nature of disputed cheque Exhibit 18, Exhibit 19, copy of the notice Exhibit 20, post receipt Exhibit 21 and acknowledgment slip Exhibit 22 were produced. 2.4. 2.3. To prove the guilt of the accused, the complainant had examined himself below Exhibit 60 and the Bank officer at Exhibit 66. Further the documentary evidence in the nature of disputed cheque Exhibit 18, Exhibit 19, copy of the notice Exhibit 20, post receipt Exhibit 21 and acknowledgment slip Exhibit 22 were produced. 2.4. On filing the closing pursis, statement was recorded under Section 313 of the Cr.P.C. wherein the accused pleaded innocent and stated that the bag containing the cheque as well as the necessary documents was fallen down from the bike and with regard to the same the Janvajog application was registered before the Gambhoi Police Station as well as the application was given for the stop payment before the Bank authority and by misusing the said cheque and making the forge signature on the same, the false complaint is filed before the learned trial Court. 2.5. In addition of his statement, accused had produced the documentary evidence in the nature of specimen signature Exhibit 67, account opening form Exhibit 68, account opening form Exhibit 69. The reply given by the police sub inspector, Gambhoi Police Station Exhibit 95, affidavit on the stamp paper Exhibit 106, application given to the police station Exhibit 107, reply to the demand notice Exhibit 108, postal receipt Exhibit 109, acknowledgment slip Exhibit 110 and the reply of Head Constable of Gambhoi Police Station Exhibit 111. 2.6. After considering these evidences and the arguments made by the learned advocates for the respective parties, learned trial Court was pleased to acquit the respondent-accused from the charges under Section 138 of the N.I.Act which is impugned before this Court. 3. Heard learned advocate Mr.Mahendra Vora for the appellant and as this matter is decided on merits at admission stage, after perusing the record and proceedings, without issuing the notice to the respondent, respondent was not heard. 4. Learned advocate Mr.Mahendra Vora submits that though the defence of the respondent-accused was not believed by the learned trial Court with regard to the missing of the cheque book and giving application before the concerned police station as well as to the Bank authority, judgment and order of acquittal was passed. 4. Learned advocate Mr.Mahendra Vora submits that though the defence of the respondent-accused was not believed by the learned trial Court with regard to the missing of the cheque book and giving application before the concerned police station as well as to the Bank authority, judgment and order of acquittal was passed. Learned advocate Mr.Vora submits that though further defence with regard to the signature differ was also disbelieved by the learned trial Court, however, at the end judgment and order of the acquittal was passed by the learned trial Court. 4.1. Learned advocate Mr.Vora submits that the sole ground for acquitting to the respondent-accused is that the complainant did not examine the relatives and the friends from whom the money was borrowed and was lent to the respondent-accused and thereby he failed in proving the financial capacity to lend the amount. Learned advocate Mr.Vora submits that though presumption, which is in favour of the complainant under Sections 118 and 139 of the N.I.Act regarding the issuance of the cheque to discharge the legally enforceable debt in favour of the complainant was not rebutted by the respondent-accused by establishing the probable defence, judgment and order of acquittal was passed by the learned trial Court acquitting the respondent-accused. 4.2. Learned advocate Mr.Vora submits that as the complainant and the respondent was having the homely relations and on sudden demand, the complainant had arranged the funds from the friends and relatives. By nonexamining the said witness the case of the complainant cannot be said to have been falsified. Learned advocate Mr.Vora submits that for the small amount the friends or relatives may not appear before the learned trial Court for the evidence, as on the instance of the complainant, the amount was given to the complainant, which was lent in turn to the respondent-accused. Therefore, acquitting the respondent-accused for not examining the said witness, learned trial Court has committed a grave error in acquitting the respondent-accused. 4.3. Learned advocate Mr.Vora submits that though the case of the complainant was believed by the learned trial Court and probable defense which respondent-accused had tried to put was discarded, judgment and order of the acquittal was passed by the learned trial Court, which is against the material on record. 4.3. Learned advocate Mr.Vora submits that though the case of the complainant was believed by the learned trial Court and probable defense which respondent-accused had tried to put was discarded, judgment and order of the acquittal was passed by the learned trial Court, which is against the material on record. Learned advocate Mr.Vora submits that when the complainant had discharged his initial burden to prove the execution of the cheque and on proving the said execution, statutory presumption which is available under the Act comes into operation in favour of the complainant and failing to dislodging of the said presumption by producing the evidence which may in the standard or preponderance of probabilities, learned trial Court had committed an error in acquitting to the respondent-accused from the charges. By submitting the same, learned advocate Mr.Vora prays to admit this appeal and to convict the respondent-accused for the charges levelled against him. 5. By submitting the same, learned advocate Mr.Vora prays to admit this appeal and to convict the respondent-accused for the charges levelled against him. 5. Considering the submissions, before entering into the merits of the case, this Court deems it fit to relook the provisions of the N.I.Act, which are reproduced hereinbelow: “Section 118 – Presumptions as to negotiable instruments Until the contrary is proved, the following presumptions shall be made: 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; as to date; that every negotiable instrument bearing a date was made or drawn on such date; as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; as to time of transfer; that every transfer of a negotiable instrument was made before its maturity; as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped; that holder is a holder in due course; that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an SP 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 burthen of proving that the holder is a holder in due course lies upon him. 138 Dishonour of cheque for insufficiency, etc., of funds in the account. 138 Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.] Section 139- in The Negotiable Instruments Act, 1881 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.” 6. 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.” 6. Considering the above provisions, what is the presumption that is elaborated in the judgment rendered by the Hon’ble Apex Court in the case of M.S.Narayana Menon vs . State Of Kerala reported in (2006) 6 SCC 39 and a discussion with regard to the same is reproduced herein below. “40. “In P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd edition, at page 3697, the term 'presumption' has been defined as under: 6.1.1. "A presumption is an inference as to the existence of a fact not actually known arising from its connection with another which is known. 6.1.2. A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof. 6.1.3. A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged but of which there is no direct proof. It follows, therefore that a presumption of any fact is an inference of that fact from others that are known". (per ABBOTT, C.J., R. v. Burdett, 4 B. & Ald, 161) The word 'Presumption' inherently imports an act of reasoning a conclusion of the judgment; and it is applied to denote such facts or moral phenomena, as from experience we known to be invariably, or commonly, connected with some other related facts. (Wills on Circumstantial Evidence) A presumption is a probable inference which common sense draws from circumstances usually occurring in such cases. The slightest presumption is of the nature of probability, and there are almost infinite shades from slight probability to the highest moral certainty. A presumption, strictly speaking, results from a previously known and ascertained connection between the presumed fact and the fact from which the inference is made." 6.1.4. Having noticed the effect of presumption which was required to be raised in terms of Section 118(a) of the Act, we may also notice a decision of this Court in regard to 'presumption' under Section 139 thereof”. 7. Keeping in mind the above ratio, now if the Court would examine the case of the complainant which is as under: 7.1. Having noticed the effect of presumption which was required to be raised in terms of Section 118(a) of the Act, we may also notice a decision of this Court in regard to 'presumption' under Section 139 thereof”. 7. Keeping in mind the above ratio, now if the Court would examine the case of the complainant which is as under: 7.1. It is the case of the complainant that the complainant and the respondent-accused were knowing to each other and having the family relations and on sudden demand, the complainant lent the money of Rs.2,49,999/after arranging the same from the family and friends in addition to his own savings. On raising the demand of the aforesaid money, the cheque bearing No.228327 of Sabarkantha District Cooperative Bank Limited, Raigadh Branch was issued in favour of the complainant. The said cheque was dated 01.05.2013 was deposited with the Bank on 12.07.2013 which was returned on 13.07.2013 with the reasons mentioned in the return memo i.e. 6(A), 7, 14 D and 23. Therefore, after following the due procedure, the private complaint came to be filed. 7.2. On being appeared, the plea was recorded of the accused below Exhibit 11 wherein he denied the allegation and claimed to be innocent. After filing the closing pursis by the complainant, the statement under Section 313 of the Cr.P.C. was recorded wherein the accused pleaded that though the demand notice was replied, same was suppressed in the complaint. In the reply to the demand notice, which is produced at Exhibit 108 the respondent-accused stated that his bag containing the cheque book of ICICI Bank as well as the cheque of other Bank and relevant documents was missing and on being realized he immediately informed to the police station and that cheque was misused by the complainant after making the forge signature and filling the other body writing of the cheque. The same defence was stated in the statement recorded under Section 313 of the Cr.P.C. 7.3. To rebut the presumption, which is in favour of the complainant, the complainant was cross examined by the respondent accused, wherein the following admissions made by the complainant. (1) The complainant is doing the business of Karm kand. Respondent-accused did not disclose for what purpose the money he needed. The amount of Rs.3 Lakh was not having when Samirbhai came and money was demanded. (1) The complainant is doing the business of Karm kand. Respondent-accused did not disclose for what purpose the money he needed. The amount of Rs.3 Lakh was not having when Samirbhai came and money was demanded. On the day when the demand was raised by the Samirbhai in the night, I arranged funds and lent to Samirbhai. I was having some of the amount and for the remaining amount, I borrowed from the family and the friends. I had not disclosed in my chief examination that how much amount I was having and what amount I borrowed from which friend and family members. I was having the saving of Rs.40,000/and for remaining amount which friend given how much amount that fact I cannot state. (2) On which date I demanded the amount from the respondent-accused is not disclosed either in my complaint or in my chief examination. On which date, the accused gave the cheque is also not disclosed in the complaint and in the chief examination. My account is with the Sabararkantha District Cooperative Bank is a joint account. I have also account in the Union Bank, Raygadh Branch. I can deposit the cheque wherever I want as per my choice. Reply of the demand notice was given by the accused through an advocate, that fact is not disclosed in my complaint or chief examination. In the said reply, accused contended that bag containing the cheques and the other important document was missing and for that Janvajog application was given to the police station and the application was also given to the Bank for stop payment. In the said reply to the demand notice, I warn the complainant to return the cheque as well as the memo. (3) During the cross examination, he further stated that I am ready to produce the rejoinder of the demand notice and for that an adjournment was granted. On next date of hearing in the continuation of the cross examination it is stated that I did not have the rejoinder of the demand notice. I did not give rejoinder to the demand notice given by the respondent-accused. I am aware the difference of account payee cheque and the bearer cheque. On next date of hearing in the continuation of the cross examination it is stated that I did not have the rejoinder of the demand notice. I did not give rejoinder to the demand notice given by the respondent-accused. I am aware the difference of account payee cheque and the bearer cheque. In the bearer cheque, on the production of the cheque the amount would immediately be given to the person and in the account payee cheque the money would be credited in the account of the person. The disputed cheque was account payee cheque. On being seen Exhibit 18, he admit that the cheque is bearer cheque. (4) In the return memo reasons mentioned are signature differ, stop payment, fund insufficient and rubber stamp required. I am having the qualification of M.A. with Sanskrit. Notice was issued by the advocate as per my instructions. After being read, the complaint and the chief examination were signed by me. (5) I know Kanubhai Barot, who is having the office at Durga Complex and having the residential premises at Green Park. It is not true that one cheque was given to the said Kanubhai and Kanubhai had deposited the cheque with the Bank. However, I am not having the knowledge that Kanubhai did not filed any complaint. The accused had demanded the amount of Rs.3 Lakh, however, only Rs.2,49,999/was arranged and therefore that was only lent to the accused. I was not having the total amount of Rs.2,50,000/. 7.4. In addition to this witness the other witness was also cross examined by the respondent-accused, who is Dharmeshkumar Bharatbhai Pandya, whose evidence was recorded at Exhibit 66. In his examination in chief, he had stated that I am serving at Sabarkantha District Cooperative Bank, District Raygadh Branch and the accused is maintaining the account in one Bank, cheque book containing the cheque number 228321 to 228340 was issued in the name of respondent-accused on 12.09.2012. Exhibit 18 cheque was issued by the Bank to the accused. The said cheque does not have the signature of the account holder. As the signature on the cheque was not matching with the specimen signature, it was returned with an endorsement of signature differ. 7.5. In addition to the said reason, another reasons being No.7, 14D and 23 was also mentioned in the return memo. The said cheque does not have the signature of the account holder. As the signature on the cheque was not matching with the specimen signature, it was returned with an endorsement of signature differ. 7.5. In addition to the said reason, another reasons being No.7, 14D and 23 was also mentioned in the return memo. On the day when the cheque was sent for clearing, the respondent-accused was having balance of Rs.622/. During the cross examination, the specimen card wherein the signature of the accused is made having produced at Exhibit 18. On being verified in the cross examination, he admit that signature on the disputed cheque is not matching with the specimen signature at Exhibit 18. The application for stop payment was given on 04.07.2013. Along with the application, the affidavit which was produced before the Gambhoi Police Station regarding the missing of cheque was also annexed. There was no any stamp or seal of the firm of the accused, namely, Samir Construction. Exhibit 18 cheque was bearer cheque and on receiving in the clearance the said cheque was returned on the same day i.e. on 13.07.2013. The signature was not of the respondent-accused on the said cheque. In addition of the aforesaid cross examination, the respondent-accused has also proved the documentary evidence, which is sample of signature Exhibit 67, account opening form Exhibit 68. 8. Learned trial Court after examining the record disbelieved the case of the respondent-accused with regard to the signature differ as well as missing the cheque book, for the reason that in the affidavit filed before the police station, the respondent-accused mentioned the cheque book of ICICI Bank which is missing however, the disputed cheque was of the Sabarkantha District Central Cooperative Bank. The learned trial Court comes to the conclusion that the amount of Rs.2,49,999/which was arranged by the complainant from the family and his friend is not proved through the evidence of any witness and therefore, financial capacity was disbelieved by the learned trial Court. 9. On examining the record, this Court is not agree with the findings of the learned trial Court where the defence of the respondent-accused was disbelieved with regard to the missing the bag and the bearer cheque which was dishonored on one of the ground of signature differ. 9. On examining the record, this Court is not agree with the findings of the learned trial Court where the defence of the respondent-accused was disbelieved with regard to the missing the bag and the bearer cheque which was dishonored on one of the ground of signature differ. To rebut the statutory presumption, accused is not expected to prove his defence beyond the reasonable doubt as is expected from the criminal case arising from the offence punishable under the Indian Penal Code or any other offence. 9.1. Accused may adduce direct evidence to prove that cheque in question was not supported by the consideration and that there was no debt or liability to be discharged by him. As held by the Apex Court in catena of judgments that Court need not insist in every case that the accused should disprove nonexistence of consideration and that by leading direct evidence because existence of negative evidence is neither possible nor contemplated. Some thing which is probable has to be brought on record for getting burden of proof shifted to the complainant. 10. In the present case, to disprove the case of the complainant and to dislodge the presumption, accused has raised his probable defence of missing the cheque and for that he produced the application, which was given to the Gambhoi Police Station along with an affidavit on Non-Judicial Stamp paper. In addition to that during the examination of the Bank Officer, wherein it is admitted that the disputed signature was not matching with the specimen signature of the card is also sufficient to dislodge the presumption, which in favour of the complainant. 11. One more glaring aspect is that the amount, which was lent is an aud amount i.e. Rs.2,49,999/. When the respondent had collected the amount from the friends and relatives, he stated in his cross examination that he could not collect the amount of Rs.2,50,000/. To believe the case that Rs.1 was left in Rs.2,50,000/and that amount was lent is also under cloud of doubt. 12. This Court is of the view that the probable defence, which was raised by the respondent-accused by leading the evidence in the nature of specimen signature, stop payment application and the affidavit on the stamp paper with regard to the missing complaint has successfully to dislodge the presumption which is in favour of the complainant. 12. This Court is of the view that the probable defence, which was raised by the respondent-accused by leading the evidence in the nature of specimen signature, stop payment application and the affidavit on the stamp paper with regard to the missing complaint has successfully to dislodge the presumption which is in favour of the complainant. In addition to the above documents, the detailed cross examination was held of the complainant wherein the complainant himself had admitted that signature was not of the respondent-accused on the disputed cheque. The presumption, which is mandated under Section 139 of the N.I.Act does not indeed include the existence of the legally enforceable debt or liability. When the accused raised the defence, wherein the existence of the legally enforceable debt or liability was challenged then onus after rebutting the said presumption again shifted on the complainant. When the accused is able to raise the probable defence which create doubt about the existence of the legally enforceable debt or liability, prosecution would fail. That by producing the material and by cross examining the complainant, the accused had successfully rebutted the presumption and therefore, there cannot be said any error committed by the learned trial Court in acquitting the respondent-accused. 13. Further more, as per the law laid down by the Apex Court in catena of decisions wherein it is held that, accused has to bring on record the facts and circumstances, which may lead the Court to conclude either this consideration is not exist or that nonexistence was so probable that a prudent man would, under circumstances of the case act upon plea that consideration does not exist. Addition to this fact, the complainant also fails to prove his financial capacity though in the chief examination and in the complaint averment made that after borrowing the money from the friends and relatives, the amount was lent to the accused. 14. Addition to this fact, the complainant also fails to prove his financial capacity though in the chief examination and in the complaint averment made that after borrowing the money from the friends and relatives, the amount was lent to the accused. 14. This being a acquittal appeal, as per the law laid down by the Apex Court in case of Chandrappa and others vs. State of Karnataka, reported in (2007) 4 SCC 415 wherein the general principles were laid down regarding the powers of the Appellate Court while dealing with the appeal against an order of the acquittal, which are reproduced hereinbelow: “(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of 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 emphasize 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 double presumption in favour of the accused. Firstly, the presumption of innocence 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.” 15. Considering the above judgment and overall circumstances of the case, this Court is of the view that the judgment and order of acquittal passed by the learned trial Court is in accordance with law and there is no any illegality, perversity or impropriety found in the judgment and, therefore, the same is required to be confirmed. 16. In view of the above discussions, this appeal fails. 16. In view of the above discussions, this appeal fails. The judgment and order of the acquittal passed by the learned 2nd Additional Chief Judicial Magistrate, Himmatnagar at Sabarkantha in Criminal Case No.6123 of 2013 below Exhibit 117 dated 24.08.2023 is hereby confirmed. 17. Record and proceedings be sent back to the concerned trial Court, forthwith.