JUDGMENT : 1.This appeal is filed by the appellant-original complainant under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C. referred hereinafter) challenging the impugned judgment and order of acquittal dated 16.12.2022 passed in Criminal Case No.543 of 2019 by the learned Special Judge, N.I.Act Court, Surat. 2.Case of the complainant is that the complainant is doing the business in the name and style of Remedial Fashion Proprietor and the accused is doing online business and giving the orders to the complainant for readymade goods. The accused No.2 is managing the whole business of the accused and as per the order placed by the accused, the goods were sent of the amount of Rs.81,076/- by way of different challans. For the payment of the aforesaid amount as well as the late payment charges, the cheque bearing No.001483 of ICICI Bank dated 25.10.2018 for the amount of Rs.1 Lakh was issued in favour of the complainant. On depositing the aforesaid cheque, it was returned with an endorsement of ‘fund insufficient’. Therefore, the demand notice was issued on 27.11.2018 which was returned with an endorsement of ‘no person staying at the Kanjali Company’ on 30.11.2018. 2.1. On following the procedure prescribed under the Act, private complaint came to be filed before the learned trial Court, wherein after recording the verification, summons came to be issued upon respondents-accused. On being appeared, plea came to be recorded below Exhibits 21 and 22 of the accused, wherein accused pleaded not guilty and came to be tried. 2.2. 2.1. On following the procedure prescribed under the Act, private complaint came to be filed before the learned trial Court, wherein after recording the verification, summons came to be issued upon respondents-accused. On being appeared, plea came to be recorded below Exhibits 21 and 22 of the accused, wherein accused pleaded not guilty and came to be tried. 2.2. To prove the case, the complainant had examined himself below Exhibit 4 and produced the documentary evidence in the nature of bill and different challans from Exhibit 23 to Exhibit 34, outstanding report below Exhibit 35, cheque below Exhibit 36, returned memo below Exhibit 37, demand notice below Exhibit 38, Indian Post Receipt below Exhibit 39, thereafter on filing the closing pursis further statement was recorded wherein the accused had denied for the issuance the cheque and stated that the alteration was made in the cheque and he wants to send the disputed cheque before the handwriting expert and the application was given along with the prayer that action may be taken under Section 340 of the Cr.P.C. below Exhibit 9 which was rejected vide order dated 17.08.2021 by the learned trial Court on the ground that there is no any cogent and reliable reasons found to send the cheque to the FSL. 2.3. Thereafter, again an application was preferred by the respondent-accused below Exhibit 53 stating that there is an alteration in the dates, cheque and in place of ‘2016’, ‘08’ is added, which was also rejected by the learned trial Court vide order dated 27.04.2022. In the said order, the learned trial Court has observed that if the accused wants to examine any experts in his defence then that liberty is reserved. Thereafter, the respondents-accused had produced the opinion of the expert i.e. S.J. Laboratory wherein it was opined that in dates numerical ‘6’ has been converted into numerical ‘8’. In addition to that the expert was also examined below Exhibit 63, namely, Jayeshkumar Jagdishkumar Dave. 2.4. That learned trial Court after considering the evidence on record and the arguments advanced by the learned advocates for the respective parties has come to the conclusion that the complainant fails to establish the legally enforceable debut against the respondents-accused and the respondents-accused is acquitted from the charges, the same is impugned before this court. 2.4. That learned trial Court after considering the evidence on record and the arguments advanced by the learned advocates for the respective parties has come to the conclusion that the complainant fails to establish the legally enforceable debut against the respondents-accused and the respondents-accused is acquitted from the charges, the same is impugned before this court. 3.Heard the learned advocate Mr.Nishit Joshi for the appellant and as this Court has decided the case at admission stage, though the respondents-advocate was represented through his advocate, but was not allowed to argue. 4.Learned advocate Mr.Joshi submits that the judgment and order of the trial Court was passed mainly on two grounds; (i) that as per the opinion of the handwriting expert there is an alteration made with the disputed cheque and (ii) the complainant fails to establish that against the bill of Rs.81076/- how the cheque of Rs.1 Lakh was issued in favour of the complainant and the complainant has also not produced the certificate under Section 65B of the Indian Evidence Act to prove genuineness of the computerized bill. 4.1. Learned advocate Mr.Joshi submits that though in the disputed bills, the respondents-accused had signed as a receiver and the stamp and seal of the firm of the accused is also made. Without considering the same, learned trial Court has acquitted the respondents-accused. Learned advocate Mr.Joshi submits that alteration which was alleged to have been made cannot be said as a material alteration as there is no dispute with regard to the signature of the respondents-accused in the cheque neither the transactions were disputed, however, the learned trial Court had given much weightage to the opinion of the expert and acquitted the respondents-accused. 4.2. Learned advocate Mr.Joshi submits that despite the presumption, which is in favour of the complainant was not rebutted by the respondents-accused, learned trial Court has committed a grave error in acquitting the respondent-accused from the charges. Learned advocate Mr.Joshi submits that without any cogent reason the judgment and order of acquittal is passed and therefore, the same is required to be interfered with and appeal is required to be allowed. 5.Considering the submissions advanced by the learned advocate for the appellant before examining the case on merits, this Court would deem it fit to refer the relevant provisions of the N.I.Act. “Section 87. 5.Considering the submissions advanced by the learned advocate for the appellant before examining the case on merits, this Court would deem it fit to refer the relevant provisions of the N.I.Act. “Section 87. Effect of material alteration.—Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration by indorsee.—And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.The provisions of this section are subject to those of sections 20, 49, 86 and 125. 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 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 burden of proving that the holder is a holder in due course lies upon him. Section 138 Dishonour of cheque for insufficiency, etc., of funds in the account. Section 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. 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.” Section 118 of the N.I.Act provides the presumptions as to negotiable instruments wherein the presumptions related to the consideration, date, time of acceptance, time of transfer, order of endorsement, stamps and the holder in due course is provided. The said presumption is rebuttable presumption and provides that until the contrary is proved, it would be presumed that all the ingredients of section 118 is satisfied with. This section laid down the special rule of evidence applicable to the negotiable instruments. Normally, the initial burden is always on the plaintiff to prove the execution of the pronote. Once the execution of pronote is proved by the plaintiff then the statutory presumption available under Section 118 of the N.I.Act comes into operation in favour of the plaintiff as passing of consideration as to dates etc., but the respondents-accused may also dislodge the statutory presumption, to dislodge the presumption, accused has not to prove through the direct evidence only even the circumstances or preponderance of probability itself is sufficient to dislodge the legal presumption attached to the accused. Once the accused is able to show the preponderance of the probability to dislodge the legal presumption, the burden again shift on the plaintiff to establish the passing of consideration. 6. What is the presumption that is defined by the Apex Court in the case of in the case of M.S.Narayana Menon vs . State Of Kerala reported in (2006) 6 SCC 39 , 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 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.Keeping in mind the above position of law if the case of the complainant is to examine then the complainant alleged in the complaint that for the payment of the bill including the late payment charges, the cheque bearing No.001483 dated 21.10.2018 for the amount of Rs.1 Lakh was issued which was dishonored with an endorsement of ‘insufficient fund’. In the first opportunity, the respondents-accused when appeared and their further statements were recorded, they stated that there is an alteration in the cheque and therefore, they prayed to send the cheque to the handwriting expert and for that they filed an application below Exhibit 9 praying that the action be taken against the complainant under Section 340 of the Cr.P.C. for producing the false evidence before the Court of law and also prayed to send the cheque to the handwriting expert. 8.Learned trial Court vide order dated 21.10.2018 has rejected both the prayers on the ground that without any cogent and reliable reasons, the cheque cannot be sent to the FSL. The respondents-accused had filed another application below Exhibit 53 praying similar relief, which was also rejected vide order dated 27.04.2022, however, the learned trial Court has reserved the liberty to examine the expert to prove his defence. In order to prove the defence, the Forensic Expert, namely, Jaykumar Dave was examined below Exhibit 36 wherein he produced his opinion stating that in both the cheques in date numerical six has been converted into the numerical eight and cheques’ date has been altered. That opinion was exhibited below Exhibit 66. 9.During the cross examination, the complainant could not establish any discrepancies in the evidence of the witness below Exhibit 63. 10. It is true that as provided under Section 87 of the N.I.Act only material alteration of a negotiable instrument renders the instrument void against any one who is party therefore, at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of original party. An alteration of the negotiable instrument is material if it changes its legal effect or its course as means of evidence. It is material if it easily affects the parties’ substantial right whether such result actually follows or not and even though the change is abundant by the parties in whose favour it was intended to operate. This principle of law is essential for integrity and entity of the contract, and is found on the sound sense, and it is calculated to prevent the fraud and determent from tempering with written security and it would be directly redundant with the policy of such law to permit the holder of bill to attempt of fraud of this kind of impunity, which would be the case if after being detected in the attempt, he was not in a worst position than he was before. 11. The Apex Court in the case of Seth Loonkaran Sethiya And Ors. vs Mr. 11. The Apex Court in the case of Seth Loonkaran Sethiya And Ors. vs Mr. Ivan E. John And Ors, reported in AIR (1977) SC 336 has held that material alteration is one where the rights, liabilities and legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed. 12. In the case on hand to ascertain that whether it was material alteration or not, following fact is to be considered. (I) As per the expert opinion Exhibit 36, cheque was altered and in place of 2016, it was added 2018. By doing so an attempt was made to put the case in a limitation. As the complaint is filed in the year 2019 and cheque was returned as per the endorsement on 31.10.2018. Therefore, it was projected that the cheque was deposited within a time limit prescribed under the Act. (II)During the cross examination when the question was put that whether these dates were altered, the answer was given that “I cannot say anything”. (III) It is admitted in the cross examination that due to nonobtaining the GST Number the business was closed in the year 2017. To support the complaint and to establish the legally enforceable debt, the complainant has also produced the bill which is of 2017 i.e. after closing the business. Therefore, in the opinion of this Court, the date is a very material in calculating the period of limitation to deposit the cheque and to even sue before the Court of law and instrument itself is void declared under Section 87 of the N.I.Act. 13. To rebut the presumption which is provided under Section 139 of the N.I.Act the complainant was cross examined by the respondent-accused wherein following admissions were made: (I) That in the challan which is produced, who signed as a receiver, he cannot say surely. No any evidence related to the income tax was produced. Computerized bill which was produced was without certificate required under Section 65 B of the Indian Evidence Act. He knows the person namely Vijaybhai Kukadiya who is the brother-in-law of the accused Jigneshbhai. The complainant is having very good relations with Vijaybhai Kukadiya. No any evidence related to the income tax was produced. Computerized bill which was produced was without certificate required under Section 65 B of the Indian Evidence Act. He knows the person namely Vijaybhai Kukadiya who is the brother-in-law of the accused Jigneshbhai. The complainant is having very good relations with Vijaybhai Kukadiya. The suggestion, which was put that due to dispute between the accused and Vijaybhai Kukadiya, cheque was obtained from Vijaybhai Kukadiya and after overwriting, it was deposited with the Bank, which was denied. There was no any evidence to show that at the time of transaction, he was having the stock of goods, which is mentioned in the complaint. 14. Under Section 139 of the N.I.Act, it is settled law that existence of the debt is not the subject matter of presumption. The drawee of the cheque has to prove the existence of the debt or liability and it is only upon such proof of existence of debt, the presumption under Section 139 of the Act to the effect that cheque has been issued for discharge of the debt or other liability can be drawn. The standard of proof to discharge the burden in terms of Section 139 of the N.I.Act being a preponderance of the probability, the inference can therefore be drawn not only from the material brought on record, but also from the reference to the circumstances upon which the accused relies on. 15. Considering the material placed before the learned trial Court, it cannot be concluded that the learned trial Court committed an error acquitting the respondent-accused and holding that the complainant fails to prove the legally enforceable debt against the respondent-accused. 16. This Court has also considered the judgment rendered by the Apex Court in the case of Basalingappa V/s. Mudibasappa reported in (2019) 5 SCC 418 where summarize the principle enumerated in paragraph No.25, which reads as under: “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 139is 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 139is 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." 17. This being an 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. 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.” 18. Therefore, this Court is of the view that there is no interference required in the impugned judgment and order of acquittal. 19. Resultantly, this appeal fails. The impugned judgment and order of acquittal dated 16.12.2022 passed in Criminal Case No.543 of 2019 by the learned Special Judge, N.I.Act Court, Surat is hereby confirmed. Record and proceedings be sent back to the concerned Court, forthwith.