JUDGMENT : 1. This appeal is filed under Section 378 of the Code of Criminal Procedure challenging the judgment and order passed by the learned 4th Additional Judicial Magistrate First Class, Himmatnagar dated 29.08.2023 in Criminal Case No.2149 of 2020. 2. The appellant is the original complainant, who filed a complaint before the learned Chief Judicial Magistrate, Himmatnagar alleging that the complainant is doing the agriculture work and private business and knowing the accused through one Rajubhai Amichandbhai Patel, who was the resident of Mahavinagar, Himmatnagar, District: Sabarkantha. On 11.10.2019, the respondent – accused came along with Rajubhai Patel and demanded the amount of Rs.4,50,000/- and the complainant, after arranging the same, lent the said amount to the respondent – accused in cash. At the time of lending the amount, assurance was given that it would be repaid within a period of three months however, on completion of three months, when the demand was raised, the cheque bearing no.082762 of Sabarkantha District Central Cooperative Bank was issued in favour of the complainant. On depositing the same, the same was dishonoured with an endorsement of “insufficient fund”. Therefore, the notice under Section 138 of the Negotiable Instruments Act was issued on 17.02.2020 which was not replied nor complied by the respondent – accused and, therefore, private complaint came to be filed before the competent Court. After recording the verification, the summons came to be issued under Section 204 of the Code of Criminal Procedure and thereafter, the respondent – accused appeared and plea was recorded below Exh.16. The respondent – accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the complainant has examined himself below Exh.19 and produced six documentary evidence and thereafter, filed the closing purshish below Exh.37. On filing the same, further statement under Section 313 of the Code of Criminal Procedure was recorded wherein, the accused pleaded to be innocent and stated that there is no any debt which is incurred against the complainant however, the cheque which was given to Surbhi Finance, was misused by the complainant. In defense, the accused produced the reply to the demand notice below Exh.36. After considering the material placed and the submissions advanced by the learned advocates for the respective parties, the learned trial Court has passed the judgment and order of acquittal which is impugned before this Court. 3. In defense, the accused produced the reply to the demand notice below Exh.36. After considering the material placed and the submissions advanced by the learned advocates for the respective parties, the learned trial Court has passed the judgment and order of acquittal which is impugned before this Court. 3. Heard learned advocate Mr.Hannan Qureshi for the appellant. 4. The learned advocate submits that the initial burden upon the complainant to show the legal debt was discharged by the complainant by proving the disputed cheque. The signature on the cheque or issuance of the cheque was not disputed by the respondent – accused. However, the learned trial Court has passed the judgment and order of acquittal only on the ground that the amount of debt in the cheque was not tally with the complainant and believed the case of the defense that the said cheque was issued to Rajubhai, who is a partner of Surbhi Finance. It is submitted that the learned trial Court has wrongly come to the conclusion that the complainant fails to prove his financial capacity. In addition to the income from service, the complainant has also stated that he is having the yearly agricultural income of Rs.5 to 6 lacs however, discarding the same, the judgment and order of acquittal was passed. Therefore, the learned advocate submits that the same deserves to be interfered with and the accused is required to be punished by convicting him for the offence punishable under Section 138 of the Negotiable Instruments Act. 5. Considering the arguments advanced and before entering into the merits of the case, this Court deems it fit to relook the relevant provisions of the Negotiable Instruments Act. Sections 118, 138 and 139 are reproduced hereinbelow:- “Section 118 – Presumptions as to negotiable instruments Until the contrary is proved, the following presumptions shall be made: 1. 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; 2. as to date; that every negotiable instrument bearing a date was made or drawn on such date; 3. as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; 4. as to date; that every negotiable instrument bearing a date was made or drawn on such date; 3. as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; 4. as to time of transfer; that every transfer of a negotiable instrument was made before its maturity; 5. as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; 6. as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped; 7. 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: "A presumption is an inference as to the existence of a fact not actually known arising from its connection with another which is known. A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof. 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." 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. 7. Keeping in mind the above provisions, if now, the merits are to be considered, then the complainant had contended in the complaint that through one Rajubhai Amichandbhai Patel, he came into contact with the respondent – accused and the amount of Rs.4,50,000/- was lent. To repay the amount, the impugned cheque was issued and on dishonouring the same, the complaint came to be filed after issuance of the notice. In the cross-examination which was conducted by the respondent - accused, the following admissions were made:- i. Along with the complaint, no evidence of income from the job or the agriculture was produced. ii. Rajubhai Amichandbhai Patel is my friend. iii. Rajubhai Amichandbhai Patel is running the Surbhi Finance which is closed as on date and Surbhi Finance was taking deposits of the people. iv. I do not have any financial transactions with said Rajubhai. v. I am not having the knowledge that how many complaints are filed by said Rajubhai in the Himmatnagar Court. vi. I am serving in the private firm and my salary is Rs.12000/- to 13000/-. vii. My family is consisting five members and from the monthly income, amount of Rs.5000/- is kept as savings. viii. My agriculture income is Rs.5 to 6 lacs yearly. ix. It is true that some time, there would not be any savings from the agriculture income. x. I am having the bank account with the Corporation Bank and keeping Rs.3 to 4 lacs in cash at my home for emergency. xi. It is true that I am depositing my savings in the bank. xii. I am filing the yearly return with the Income Tax Department. xiii. I do not have any proof to show that the amount of Rs.4,50,000/- was lent to the accused. xiv. Today, one reply to the notice was shown to me and on referring the same, I say that it is not received by me. xv. The address which is mentioned in the same, is of my house. xvi. For what purpose, the amount was lent is not mentioned in my examination-in-chief or in the complaint. For personal use, the amount was lent. xvii. At which place, the accused came to collect the amount is not mentioned in the notice, complaint or in the examination-inchief. xviii. The address which is mentioned in the same, is of my house. xvi. For what purpose, the amount was lent is not mentioned in my examination-in-chief or in the complaint. For personal use, the amount was lent. xvii. At which place, the accused came to collect the amount is not mentioned in the notice, complaint or in the examination-inchief. xviii. I did not disclose that at which place, the disputed cheque was given by the respondent – accused, in my complaint, notice or in the examination-in-chief. xix. No any written document is executed between Rajubhai, complainant and the accused with regard to the lending of the amount. xx. I do not have any evidence to show that the amount was lent to the accused. The said amount was given from my personal savings. I am not ready to produce my bank pass book. xxi. I am having the PAN card since last 5 to 7 years. xxii. I am filing the income tax returns but, with regard to the present transaction, there is no any entry mentioned in the income tax returns. xxiii. I do not have any license to lend the money nor I am doing the business for the same. xxiv. There was no any transaction except this with the respondent – accused for petty amount also. xxv. The details on the cheque except the signature, were filled up by me. xxvi. I know the partner of Surbhi Finance Mr.Ketan Patel. Mr.Ketan Patel and Rajubhai Patel are the partners of Surbhi Finance. xxvii.I have not filed any complaint under Sections 406 and 420 against the accused. xxviii.I have no any social relations with the accused.” 8. In addition to the above cross-examination, the respondent – accused had also relied on the reply of demand notice, which was given below Exh.36. In the said reply, the stand was taken that no any amount was lent by the complainant. The cheque which was given to Rajubhai was misused by the complainant. 9. Considering the above aspects, this Court comes to the conclusion that the respondent – accused had successfully rebutted the presumption which is in favour of the complainant. The circumstances created during the crossexamination suggest that the complainant does not have any evidence to show that on the day the amount was lent, he was having the cash. 9. Considering the above aspects, this Court comes to the conclusion that the respondent – accused had successfully rebutted the presumption which is in favour of the complainant. The circumstances created during the crossexamination suggest that the complainant does not have any evidence to show that on the day the amount was lent, he was having the cash. In fact, he had shown the unwillingness to produce the bank pass book. The reply which was served on the address which is mentioned in the demand notice, was also denied by the complainant. The complainant is having the monthly income of Rs.12000/- and there was no any social relations between the complainant and the accused nor previously, any petty transactions were taken place between the complainant and the accused. The complainant, in the cross-examination, admits that there is no any written agreement between the complainant, Rajubhai and the respondent – accused. From these facts, the defense raised about non-existence of the debt towards the complainant was appeared to be probable. On rebutting the said presumption, the onus would again shift on the complainant however, the complainant did not examine said Rajubhai, who is the middle man at the time, the amount was lent. Therefore, the defense, which was created, appears to be a probable defense. To rebut the statutory presumption, the accused is not expected to prove his defense beyond the reasonable doubt, as it is expected of the complainant in criminal trail to prove the offence. Therefore, this Court is of the view that the complainant failed to discharge his burden, which is shifted on account of rebuttal of the presumption by the respondent – accused. 10. This Court has also considered the decision rendered by the Hon’ble Apex Court in the case of Basalingappa V/s. Mudibasappa reported in (2019) 5 SCC 418 . Paragraph 25 is reproduced herein below:- 25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner: 25.1. Once the execution of cheque is admitted Section 139 of theAct 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 probable defence. Once the execution of cheque is admitted Section 139 of theAct 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 probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or 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 in the witness box to support his defence." 11. Considering the above judgment and the 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. 12. In view of the above discussion, this appeal fails and the judgment and order passed by the learned 4th Additional Judicial Magistrate First Class, Himmatnagar dated 29.08.2023 in Criminal Case No.2149 of 2020 is hereby confirmed. 13. Record and Proceedings be sent back to the concerned learned trial Court.