JUDGMENT : 1.This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ hereinafter) by the appellant-original complainant challenging the judgment and order of acquittal passed in Criminal Case No.10180 of 2020 dated 17.08.2023 by the learned 19th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat acquitting the respondent-accused from the charges punishable under Section 138 of the N.I.Act. 2. It is the case of the complainant that the complainant is the proprietor of Bharti Trends and doing the business of cloth trading. The accused is doing the business in the name and style of Liladhar Saris. The accused had contacted the complainant and requested to make trading in purchasing the goods from the other vendors and assured that in the prescribed time the amount would be paid and if not paid within a time then the same would be paid with late payment charges. The complainant had sent the goods from Shivam Dried House Private Limited and AAA Creation and Tej Fabrics to the accused and along with the goods the challans were also sent along with the bills. 3. On receiving the bills, the cheque bearing No.000066 dated 20.01.2020 was issued in the name of the complainant firm of Rs.5,00,910/. On depositing the same, it was returned with an endorsement of ‘fund insufficient’. Along with the aforesaid cheque one more cheque was issued being No.000660 dated 20.01.2020 for the amount of Rs.47,566/-, which was also returned with an endorsement of ‘fund insufficient’. 4. On receiving the return memo the notice came to be issued on 23.01.2020. The aforesaid notice was not complied with, however, evasive reply was given, therefore, on following the procedure under the N.I.Act private complaint came to be filed. 5. On appearing, the verification came to be recorded of the respondent-accused wherein the accused had pleaded not guilty and claimed to be tried. To prove the case, the complainant has examined himself below Exhibit 4 and produce the bill as well as the challan from Exhibits 11 to 27 and two cheques below Exhibits 28 and 30. 5. On appearing, the verification came to be recorded of the respondent-accused wherein the accused had pleaded not guilty and claimed to be tried. To prove the case, the complainant has examined himself below Exhibit 4 and produce the bill as well as the challan from Exhibits 11 to 27 and two cheques below Exhibits 28 and 30. Thereafter, on filing the closing pursis, further statement under Section 313 of the Cr.P.C. came to be recorded wherein the accused had stated that the security cheque which was given earlier was misused by the complainant and though notice below Exhibit 35 was issued on 18.01.2020 not to deposit the blank cheque, the complainant had deposited the same. Therefore, the reply to the notice was given below Exhibit 36 wherein it is contended that there is no legally enforceable debt towards the complainant. After considering the material placed on record, learned trial Court has passed the judgment and order of acquittal, which is impugned before this Court. 6. Heard the learned advocate Mr.B.C.Dave for the appellant and as this Court has decided the matter at admission stage, no notice was issued to the respondent-accused. 7. The case of the complainant in the complaint is that he has acted as a broker and sent the goods to various firms for which challans and bills were produced and to make the payment of the aforesaid bills, the cheques which were issued were dishonored. 8.Considering the submissions advanced by the learned advocate for the appellant, relevant provisions of the Negotiable Instruments Act are required to be relooked, which are reproduced herein below: 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 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. 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. 9. 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. 9. 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 , 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”. 10. 10. From the above settle law, it emerges that the presumption created by section 139 may get displaced by the prosecution evidence on record itself, or accused may choose to lead the independent evidence in rebuttal thereof. If the circumstances of suspect character emerge proved from the complainant’s evidence, which are found to badly damaging the creditability of the prosecution case, they are sufficient to displace the presumption available to the complainant. 11. In the case herein to dislodge the presumption, the complainant was first cross examined by the respondent-accused wherein the complainant has admitted that earlier the complainant used to sell the goods of the accused’s shop. That the bills which are produced was of Shivam Dried House Private Limited and AAA Creation. Complainant is not the owner of either of firms. The delivery of goods were sent directly through the accused’s shop. Exhibit 17 delivery challan does not contain the signature of the accused. The complainant had never supplied any goods in the name of Bharti Trends. It is admitted that when transactions between two vendors took place, the security cheque in advance and demand draft used to get as per the trends of the market. Prior to this transaction, earlier the transaction was taken place with the accused. Earlier also the complainant used to get the goods and was getting the brokerage, no broker would get goods directly. The demand notice was replied below Exhibit 36. The complainant had done trading of the goods, no dates can certainly be said that on which date the goods were sent. The complainant went to the accused, accused did not come to us. The accused had issued the notice below Exhibit 35. The cheque returned date is not mentioned either in notice, complaint and in chief examination. The complainant used to do the business without the GST certificate. The complainant did not state in my complaint, notice and chief examination that how the goods were sent to the accused. The complainant did not sent the goods to the accused, but on complainant’s say the other vendors had sent the same. The accused did not instruct to deposit the cheuqe and for the complainant did not produce any evidence instructing to deposit the cheque by the accused. The complainant did not sent the goods to the accused, but on complainant’s say the other vendors had sent the same. The accused did not instruct to deposit the cheuqe and for the complainant did not produce any evidence instructing to deposit the cheque by the accused. In addition to the above cross examination the respondent-accused had also produced the notice below Exhibit 35 dated 18.01.2020 which is prior to the date of depositing the cheque with the Bank i.e. 20.01.2020. In the said notice the respondent-accused had instructed to the complainant that the respondent-accused had paid the goods amount which was purchased through the complainant, however, as per the trends the security cheque was issued was not returned. That dispute arose between the complainant and the accused and for that though the required brokerage was paid, the complainant had threatened the respondent-accused that the reputation of the respondent-accused would be ruined in the market and the cheque would be deposited to recover the brokerage amount therefore, by the notice below Exhibit 35, the respondent accused had asked not to deposit any cheque with the Bank and to return the same. Thereafter, on 20.01.2020 the complainant had deposited the cheque and on dishonoring the said cheque the demand notice was issued below Exhibit 32 on 23.01.2020. Reply to the demand notice was given below Exhibit 36 on 01.02.2020 wherein also the respondent-accused had stated that no any due remains towards the brokerage, however, the security cheques were misused by the complainant. In addition to the above notices, one Ramlal Purohit was examined below Exhibit 56, who is working with the respondent-accused and he deposed in his testimony that in his presence the brokerage amount is paid and video was taken towards the payment of the amount as well as confessing by the complainant that no any amount remained, however, the cheque which is lying was not returned. The accused had placed the audio & video recording CD by list of evidence below Exhibit 57 and during the cross examination of the witness of the defence, no any incriminating material which helps the complainant could be brought on record. 12. On examining the challan, which is part of the record and proceedings, it transpires that no signature of the accused was taken in the column of receiver’s sign. 12. On examining the challan, which is part of the record and proceedings, it transpires that no signature of the accused was taken in the column of receiver’s sign. As per the provisions under the N.I.Act once the presumption gets dislodged then heavy burden would lie on the complainant to prove the case by independent positive evidence and the most material fact of existence of debt or other liability against the accused borrower of the cheuqe. 13. As the complainant fails to discharge the onus to prove his case beyond reasonable doubt after the presumption was dislodged by the respondent-accused, learned trial Court has rightly acquitted the respondent-accused from the charges. 14. 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 the Act 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." 15. 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." 15. 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 or perversity found in the judgment and, therefore, the same is required to be confirmed. 16. In view of the above discussion, this appeal fails and the judgment and order of acquittal passed in Criminal Case No.10180 of 2020 dated 17.08.2023 by the learned 19th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat acquitting the respondent-accused from the charges punishable under Section 138 of the N.I. Act. is hereby confirmed. Record and Proceedings be sent back to the concerned learned trial Court, forthwith.