ORDER : 1. Challenge in this appeal is the judgment of acquittal dated 24.01.2014, passed by learned Judicial Magistrate First Class, Raigarh, in Criminal Case No. 61 of 2012, whereby the Respondent No.1 has been acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (in short “NI Act”). 2. The brief facts of the case are that the Appellant/complainant and Respondent No.1/accused are well acquainted and they are having business transactions with each other. On account of necessity of fund for the business transaction, Respondent No.1/accused has borrowed Rs.77,000/- from the Appellant with the assurance to refund it in near future. When the amount was not repaid, on the demand of Appellant/complainant, Respondent No.1/accused had given him two cheques, bearing Cheque No. 009839 dated 21.04.2007, amounting to Rs.60,000/- and Cheque No. 009841 dated 25.04.2007, amounting to Rs. 17,000/-, which was of the account of Respondent No.1 running at Raigarh Nagrik Sahkari Bank Maryadit, Raigarh. When the said cheques were deposited in the account of Appellant/complainant, the same was dishonored by the Payee Bank on 18.07.2007 for want of sufficient balance in the account of Respondent No.1/accused. 3. On 08.08.2007, a demand notice was issued to the Respondent No.1/accused by the Appellant through his counsel. On 11.08.2007, the demand notice has been served upon the Respondent No.1/accused, despite that he has not paid the amount of the above two cheques and ultimately a complaint case under Section 142 of NI Act read with Section 200 of CrPC for the offence under Section 138 of NI Act and Section 420 of IPC has been filed. The complaint case has been filed on 10.09.2007, which has been registered on 27.10.2007, and summons was issued to Respondent No.1/accused. 4. On 21.10.2008, Respondent No.1/accused made his appearance and he has been released on bail. On 15.07.2009, the details of offence have been explained and thereafter, the evidence of the Appellant/complainant has been recorded. After recording of the Appellant's evidence, the statement under Section 313 of CrPC of Respondent No.1/accused has also been recorded, in which he denied the offence and submitted that he is innocent. 5. After conclusion of the trial and appreciation of oral and documentary evidence led by the parties, the learned Trial Court has acquitted Respondent No.1/accused from the alleged offence, hence this acquittal appeal. 6. 5. After conclusion of the trial and appreciation of oral and documentary evidence led by the parties, the learned Trial Court has acquitted Respondent No.1/accused from the alleged offence, hence this acquittal appeal. 6. Learned counsel for the Appellant/complainant would submit that learned Trial Court has erred in acquitting Respondent No.1/accused. The evidence available on record has not been considered in its proper perspective. The statutory presumptions available in the case has not been considered by the learned Trial Court. He would further submit that learned Trial Court has considered para 3 of the complaint, in which the number of the cheque is mentioned as 8060303 in place of 009839 and 009841, whereas the same is only a typographical mistake, which has never been challenged by Respondent No.1. Except in para 3 of the complaint, the number of two cheques have been correctly mentioned in para 2 of his complaint as well as in his affidavit, filed under Section 145 of NI Act. Even the Appellant/complainant relied upon the documents i.e. the two cheques (exhibit P/1 and P/2), the cheque deposition slips (exhibit P/3 and P/4), and also the cheque return memo issued by the Bank and the legal demand notice issued to Respondent No.1/accused on 08.08.2007, and in all these documents, the number of both the cheques have been correctly mentioned. Therefore, the judgment passed by learned Trial Court is erroneous. He would further submit that the learned trial Court should have consider that merely wrong mentioning of cheque number in one place of the complaint does not affect the genuineness of the complaint, particularly in view of the fact that in all other places the number of cheques have been correctly mentioned. He would further submit that there is a statutory provision in favour of the Appellant/complainant that the cheque has been issued in discharge of the legally recoverable debts, and the Appellant/complainant is holder of cheque in due course. Respondent No.1 has failed to prove that there was no legally recoverable debt, because he has failed to prove as to how his cheques came into hands of the Appellant and for which what action he has taken, if the same is not legally give to the Appellant/complainant. Respondent No.1 has failed to prove that there was no legally recoverable debt, because he has failed to prove as to how his cheques came into hands of the Appellant and for which what action he has taken, if the same is not legally give to the Appellant/complainant. Therefore, there are sufficient evidence available on record to hold guilty of Respondent No.1/accused for the alleged offence, and the acquittal appeal is liable to be allowed, and Respondent No.1/accused is liable to be convicted. 7. On the other hand, learned counsel for Respondent No.1/accused opposes the submissions made by learned counsel for the Appellant and submits that the complaint of the Appellant/complainant bears with a wrong cheque number, and therefore Respondent No.1/accused cannot be held liable for dishonour of cheques. In para 3 of the complaint, there is no averment that the cheques No. 009839 and 009841 have been dishonoured for want of funds in the bank account of Respondent No.1, and therefore no offence is made out against Respondent No.1. He would further submit that the Appellant/complainant could not establish the transaction between the parties, and there is no averment about the nature of transaction in the complaint, and thus Respondent No.1/accused has successfully rebutted the presumption under Section 139 of NI Act. He would also submit that the blank cheques were given to the Appellant as a security that too one year before the date of its dishonour. There are difference in the handwriting of both the cheques. He would also submit that the Demand Notice (exhibit P/6) does not bear any date as to on what date the notice was issued to Respondent No.1/accused, and therefore no cause of action arose in favour of the Appellant/complainant, and therefore, the learned Trial Court has rightly acquitted Respondent No.1/accused, and the impugned judgment of acquittal needs no interference. 8. I have heard learned counsel for the parties and perused the record. 9. It is not disputed by Respondent No.1 that both the cheques were dishonoured by the Payee Bank, and there is signature of Respondent No.1/accused in both the cheques in question. He only disputes that both the cheques were given to the Appellant/ complainant, which were the blank cheques, and there was no transaction between them. 9. It is not disputed by Respondent No.1 that both the cheques were dishonoured by the Payee Bank, and there is signature of Respondent No.1/accused in both the cheques in question. He only disputes that both the cheques were given to the Appellant/ complainant, which were the blank cheques, and there was no transaction between them. From the cross-examination of the Appellant, it appears that the cheques were given by the Respondent No.1/accused to the Appellant/complainant in lieu of the outstanding amount towards the work of contractorship by them. The Respondent No.1 has disputed that the above said two cheques were given by him to the Appellant/complainant one year prior to the date of its dishonour, which was kept by the Appellant with him. The Appellant/ complainant has stated in his deposition that there was a cash transaction between them. He borrowed the amount from him, and in lieu of its repayment, two cheques have been given by him, one is of Rs.60,000/- and another is of Rs.17,000/-. When he produced the said cheques for its clearance in his bank account, the same was dishonoured. After its dishonour, he orally requested Respondent No.1/accused and demanded his money, but he has not paid the money to him, and thereafter he served a legal notice to Respondent No.1/accused, which has not been replied by him, and ultimately the complaint case is filed. In cross-examination, he stated that earlier he was engaged in the business of Saree Sale. The transaction between them is not reduced in writing because he is not working as moneylender. He denied that there is a difference in the writing of the cheque (exhibit P/1), and he also denied the overwriting in the account number of the cheque (exhibit P/1). He admitted that there is a difference of handwriting in both the cheques (exhibit P/1 and P/2). He denied the suggestion given by Respondent No.1/accused that there was an agreement between them with respect to the work order of construction of boundary wall of the Collectorate compound. He also denied that for payment of wages to the labours, Respondent No.1/accused has taken cash amount from him. He also denied that as a security of repayment of amount received by Respondent No.1/accused for payment to the labours, he left two blank cheques with the Appellant/complainant. He also denied that for payment of wages to the labours, Respondent No.1/accused has taken cash amount from him. He also denied that as a security of repayment of amount received by Respondent No.1/accused for payment to the labours, he left two blank cheques with the Appellant/complainant. He further stated that Respondent No.1/accused has given him the said two cheques (exhibit P/1 and P/2). He further stated that he could not remember as to the said cheques were kept with him for about one year, and after one year, he produced the said cheques in the blank for its clearance and served a legal demand notice to Respondent No.1/ accused. 10. From the evidence led by the Appellant, it is quite vivid that the above said two cheques have been given by Respondent No.1/accused to the Appellant/complainant. He has not disputed the signatures over the said cheques, but has submitted that the said cheques were given to him one year before the date of its dishonour and it were blank cheques. Respondent No.1 has taken a defense that the said cheques were given to the Appellant/complainant in lieu of the amount taken by him for payment of labours who worked with them in a work order of construction of boundary wall at Collectorate campus, but Respondent No.1 has failed to show and produce any document with respect to the said construction work or work order as stated by him that the Appellant and Respondent No.1 have taken a contract to construct the boundary wall at Collectorate campus one year prior to the date of dishonour of cheques, the said construction work was going on and to show his bona fide defense that the said cheques were given at that time as a security for repayment of the amount of the Appellant/complainant. 11. As per the defense taken by Respondent No.1, the said cheques were given to the Appellant as a security of repayment of the amount. In the matter of “Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel and another” (2023) 1 SCC 578 , the Hon’ble Supreme Court has held that even if the cheque is given as security, the offence under Section 138 of NI Act is made out, if there is evidence that on the date, when the said cheque is said to have been given, there exists a legally recoverable debt. In para 14 & 15 the Hon’ble Supreme Court held as under: “14. In Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd. (2014) 12 SCC 539 , the issue before a two-Judge Bench of this Court was whether dishonour of post-dated cheques which were issued by the purchasers towards "advance payment" would be covered by Section 138 of the Act if the purchase order was cancelled subsequently. It was held that Section 138 would only be applicable where there is a legally enforceable debt subsisting on the date when the cheque is drawn. In Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458 , the respondent advanced a loan for setting up a power project and post-dated cheques were given for security. The cheques were dishonoured and a complaint was instituted under Section 138. Distinguishing Indus Airways, it was held that the test for the application of Section 138 is whether there was a legally enforceable debt on the date mentioned in the cheque. It was held that if the answer is in the affirmative, then the provisions of Section 138 would be attracted. 15. In Sripati Singh v. State of Jharkhand, (2022) 18 SCC 614 this Court observed that if a cheque is issued as security and if the debt is not repaid in any other form b before the due date or if there is no understanding or agreement between the parties to defer the repayment, the cheque would mature for presentation: (SCC paras 21-22) "21. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. "Security" in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. "Security" in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time-frame and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of NI Act would flow. 22. When a cheque is issued and is treated as "security" towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as "security" cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the NI Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an "on demand promissory note" and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute. If such is the understanding a cheque would also be reduced to an "on demand promissory note" and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute. When a cheque is issued even though as "security" the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation.” 12. Recently in the matter of “K. Ramesh v. K. Kothandaraman, decided by Hon’ble Supreme Court on 09.02.2024 in SLP (Cr.) No. 3377/2019 held in para 5 that: “5. In this regard our attention was drawn to paragraphs 32, 33, 34 and 36 of the judgment in Bir Singh, wherein it has been observed that even if a blank cheque leaf is voluntarily signed and handed over by the accused towards some payment would attract the presumption under Section 139 of the Act and in the absence of any cogent evidence to show that the cheque was not issued in discharge of the debt, the presumption would hold good. The said paragraphs are extracted below: "32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post-dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.” 13. In the matter of “M. Abbas Hazi v. T. N. Channa Keshava” reported in (2019) 9 SCC 606 , the Hon’ble Supreme Court has considered that the proceedings under Section 138 of NI Act are quasi-criminal proceedings, the principles which apply to acquittal in other criminal cases, cannot apply to these cases. The Respondent No.1 has not even explained, how the leaves of the cheques entered into the hands of the Appellant and therefore Respondent No.1 was rightly convicted for the offence under Section 138 of NI Act. In the present case also, there is no evidence led by Respondent No.1 as to how his cheques were found in possession of the Appellant. 14. The next submission of Respondent No.1 is that there is no averment of nature of transaction in the complaint of the Appellant. The evidence adduced to rest presumption under Section 139 of NI Act cannot be discarded merely on the ground that there is no such averment in the complaint. The Appellant is not required to show the nature of transaction or source of funds in view of the presumption available in favour of the Appellant under Section 139 of NI Act. (see P. Rasia v. Abdul Nazir, 2022 SCC OnLine SC 1131. 15. The Appellant is not required to show the nature of transaction or source of funds in view of the presumption available in favour of the Appellant under Section 139 of NI Act. (see P. Rasia v. Abdul Nazir, 2022 SCC OnLine SC 1131. 15. The learned Trial Court has based his order of acquittal on the fact that the Appellant’s averment in para 3 of his complaint that the cheque No. 8060303 has been dishonoured, but the cheque, which was given to him by Respondent No.1 bears with the cheque No. 009839 and 009841, and therefore, there is variance in the pleading of the Appellant in the complaint and thus, Respondent No.1 can safely be discharged from his burden to prove. 16. From perusal of the memo of complaint, it clearly reveals that in para 2 of his complaint, the Appellant has made averment that Respondent No.1 has given him the two cheques, bearing number 009839 dated 21.04.2007 amounting to Rs.60,000/- and 009841 dated 25.04.2007 amounting to Rs.17,000/- which was of Raigarh Sahkari Bank Maryadit, Raigarh. 17. True it is that in para 3 of his complaint, the cheque number is different than the cheque given to the Appellant by Respondent No.1, which is mentioned as 8060303, but at the same place it has also been mentioned “above said cheque”. It is necessary to reiterate the memo of complaint here to clarify the submissions made by Respondent No.1 that the cheque number is wrongly mentioned in the complaint memo, which is as under:- 18. From perusal of the complaint just below the details of the cheque, both the cheques number, amount and its date, the date of dishonour and other necessary details of notice etc. have been correctly mentioned. In the para 2 of the said complaint memo, the details of the cheque has also been correctly mentioned. Further, in the witness list disclosed at the bottom of the complaint memo, the relevant cheque numbers are also correctly mentioned at serial number 6, but only in one place in para 3 the number of cheque has been wrongly mentioned. In the para 2 of the said complaint memo, the details of the cheque has also been correctly mentioned. Further, in the witness list disclosed at the bottom of the complaint memo, the relevant cheque numbers are also correctly mentioned at serial number 6, but only in one place in para 3 the number of cheque has been wrongly mentioned. It is notable here that just before the number of cheque mentioned in para 3 of the complaint memo, the word “ mDr psd ” has also been mentioned, therefore, it can only be considered to be a typographical mistake, which does not affect the merits of the case, because in all other places of the complaint memo, the number of cheques, dates, etc. have correctly been mentioned in the complaint memo. 19. During the trial, it is not the defense of Respondent No.1 that the cheques found in possession of the Appellant was not dishonoured and the present complaint is not filed with respect to the said two cheques, which have been dishonoured on 18.07.2007. Further, in the affidavit under Section 145 of NI Act submitted by the Appellant before the learned Trial Court bears with the correct cheque numbers, dates and amounts etc. and therefore, it can be hold that even if in para 3 of the complaint memo, the cheque number has wrongly been mentioned by the Appellant. In view of the correct cheque numbers mentioned in other places of the same complaint memo, the merits of the case does not affect and there is no defect in the complaint memo made by the Appellant. 20. For the reasons mentioned hereinabove, there are sufficient grounds made out by the Appellant to interfere with the order of acquittal, and therefore the instant acquittal appeal is allowed. The judgment of acquittal passed by learned Trial Court dated 24.01.2014 is set aside. Respondent No.1 stands convicted for the offence under Section 138 of Negotiable Instruments Act, 1881. 21. So far as the sentence part is concerned, considering the fact that the complaint case is filed in the year 2007, at that time Respondent No.1 was aged about 34 years. Considering the length of dispute between the parties, the age of Respondent No.1 as also the nature of offence, jail sentence is not awarded to Respondent No.1. 21. So far as the sentence part is concerned, considering the fact that the complaint case is filed in the year 2007, at that time Respondent No.1 was aged about 34 years. Considering the length of dispute between the parties, the age of Respondent No.1 as also the nature of offence, jail sentence is not awarded to Respondent No.1. However, for the offence under Section 138 of NI Act, he is sentenced to pay the fine of Rs.1,00,000/-. In default of payment of fine amount, Respondent No.1/accused shall undergo simple imprisonment for 3 months. The said amount of fine of Rs.1,00,000/- shall be given to the Appellant/complainant as compensation as provided under Section 357(1)(b) of CrPC. 22. The acquittal appeal is allowed to the extent indicated hereinabove. 23. Record of the Trial Court be sent back along with the copy of this judgment for information and the necessary action.