JUDGMENT : 1. This appeal is filed by the appellant – original complainant challenging the judgment and order passed by the learned Additional Chief Metropolitan Magistrate, N.I. Act Court No.31, Ahmedabad dated 06.05.2023 in Criminal Case No.85308 of 2019 whereby, the respondent – accused came to be acquitted from the charges punishable under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that the complainant is doing the business in the name and style of “G.Aveda Enterprise” and the complainant is the partner of the said enterprise. It is the case of the complainant that the respondent – accused is doing the business in the name and style of “Jahnvi Agro Industries” and having the business relations with the complainant partnership firm. The respondent – accused has purchased the goods from the complainant firm by invoice no.033 dated 20.09.2018 of Rs.25,86,323/-, invoice no.034 dated 21.09.2018 of Rs.23,90,966/- and invoice no.35 of Rs.27,54,344/-. The transactions were carried out upto September, 2018, totaling the amount of Rs.77,31,633/-. On making the demand for payment of the goods, cheque bearing no.071043 dated 27.09.2018 was issued for the amount of Rs.65 lacs. On depositing the said cheque, it was dishonoured with an endorsement “payment stopped by the drawer”. Therefore, the notice came to be issued on 11.12.2018 which was returned with an endorsement “accused could not found though he was informed on telephone”. On following the due procedure prescribed under the Act, a private complaint came to be filed. 3. After recording the verification of the complainant, the learned trial Court has issued the summons and on appearing by the accused, plea came to be recorded wherein, the accused had pleaded not guilty and claimed to be tried. On following the due procedure prescribed under the Act, a private complaint came to be filed. 3. After recording the verification of the complainant, the learned trial Court has issued the summons and on appearing by the accused, plea came to be recorded wherein, the accused had pleaded not guilty and claimed to be tried. To prove the case, the complainant himself was examined below exh.3 and produced the GST certificate below exh.8, partnership deed below exh.9, bill nos.33, 34 and 35 below exh.10, cheque below exh.11, returned memo below exh.12, demand notice and postal receipt below exh.13, returned cover below exh.14, tracking report below exh.15, ledger account details of Jahnvi Agro Industries for the period from 01.04.2000 to 31.03.2018 below exh.16, ledger account details of Jahnvi Agro Industries from 01.04.2017 to 01.06.2018 below exh.17, ledger account details of Hemant Pravinchandra Zariwala from 01.04.2017 to 11.06.2018 below exh.18, ledger account details of Hemant Pravinchandra Zariwala for the period from 01.04.2000 to 31.03.2017 below exh.19, ledger account details of M.D. Enterprise from 01.04.2000 to 31.03.2018, ledger account details of Dhruvi Hemant Zariwala from 01.04.2000 to 31.03.2017 below exh.21 and ledger account details of Jahnvi Agro Industries from 01.04.2015 to 31.03.2019 below exh.23. 4. On filing the closing pursis below exh.24, the further statement of the accused came to be recorded wherein, the accused has stated that he lent the amount many times to Hemant Pravinchandra Zariwala and G.Aveda Enterprise and they were keeping the advance cheque with them. It is stated that the huge amount is due from G.Aveda Enterprise and they were denying to pay the said due amount and demanded more amount and on oral request to return the cheque, it was denied and by depositing the same with the different firms, the cheque was misused. There was no transaction with the complainant firm, namely, G.Aveda Enterprise and there was no any due remained to be paid to the said G.Aveda Enterprise. The learned trial Court, after considering the submissions and the evidence, acquitted the respondent – accused from the charges which is impugned before this Court. 5. Heard learned advocate Mr.A.S. Timbalia for the appellant – original complainant and as this matter was decided at the admission stage, the learned advocate for the respondent - accused, though appeared, was not heard. 6. 5. Heard learned advocate Mr.A.S. Timbalia for the appellant – original complainant and as this matter was decided at the admission stage, the learned advocate for the respondent - accused, though appeared, was not heard. 6. Learned advocate Mr.Timbalia submits that the respondent – accused neither disputed the bills nor transactions nor the signatures and though the presumption, which is in favour of the complainant was not rebutted, the learned trial Court has acquitted the respondent – accused. The learned advocate submits that the defense raised by the respondent – accused is improbable defense as it was stated in his further statement that the huge amount was lent to the complainant and the security cheque was misused. The learned advocate submits that this contradictory version that after lending the amount, the cheque was issued, is itself vague as any prudent man would not lend the amount and give the security cheque. The learned advocate submits that the respondent – accused has failed to establish that how the cheque was travelled to the complainant, by leading the evidence which may be in the standard of preponderance of probability however, the learned trial Court believed the bare defense and acquitted the respondent – accused from the charges. The learned advocate submits that in the cross- examination, the respondent – accused had put a specific question with regard to the selected firm and selected duration though, the various firms have made transactions with the respondent – accused and on admitting the amount with regard to the particular firm for the particular period, the learned trial Court come to the conclusion that though the amount is paid, false case is filed which is against the evidence and is contrary to the evidence placed on record. The learned advocate submits that though the respondent – accused had not placed any contemporarious record to establish that the amount which is due and payable to the complainant firm is paid, the judgment and order of acquittal was passed by the learned trial Court without any cogent reasons. In view thereof, the learned advocate prays to allow this appeal and to convict the respondent – accused for the charges levelled against him. 7. 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. In view thereof, the learned advocate prays to allow this appeal and to convict the respondent – accused for the charges levelled against him. 7. 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 ex- change 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. 8. The presumption, as envisaged under Section 139 of the Negotiable Instruments Act, is a statutory and mandatory presumption, not a discretionary presumption. 8. The presumption, as envisaged under Section 139 of the Negotiable Instruments Act, is a statutory and mandatory presumption, not a discretionary presumption. It is an established position of law that under the scheme of Negotiable Instruments Act, especially under Sections 118 and 139, the statutory presumption is created in favour of the complainant and the Court has to presume and proceed on the basis of this presumption unless it is dislodged by the accused on the strength of leading cogent and convincing evidence in support of his claim. 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 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. (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. Therefore, considering the above settled law, it can be concluded that the presumption created by Section 139 may get displaced by the complainant’s evidence on record itself, or accused may choose to lead the independent evidence in rebuttal thereof. If the circumstances of suspect character emerged, proved from the complainant’s evidence, which are found to be badly damaging the credibility of the complainant’s case, they are sufficient to displace the presumption available to the complainant. Once, that presumption gets dislodged, then heavy burden would lie upon the complainant to prove by independent positive evidence, the most material facts of existence of the debt and other liability against the accused drawer of the cheque. 11. In order to rebut the presumption, the complainant was cross-examined wherein, the following material admissions were made by the complainant. i. The complainant, namely, G.Aveda Enterprise is a partnership firm for that, no any document is produced. ii. The said G.Aveda Enterprise is not registered under the Partnership Act. iii. He himself disclosed that Avedha Enterprise is the partnership firm. iv. The notice was issued by the complainant in the name of G.Aveda Enterprise in the capacity of partner. v. Except the three bills, which are mentioned in the complaint, the other transactions are also carried out. vi. I did not recollect that whether any transaction was carried out with the other firm of the accused. vii. The firm, where we were doing the business, is stopped at present. viii. There is no any firm in the name of G.Aveda Enterprise. ix. The correct name of the firm is Avedha Enterprise. x. The statements which are produced below exhs.16 to 21 are of Avedha Enterprise. 12. vii. The firm, where we were doing the business, is stopped at present. viii. There is no any firm in the name of G.Aveda Enterprise. ix. The correct name of the firm is Avedha Enterprise. x. The statements which are produced below exhs.16 to 21 are of Avedha Enterprise. 12. The demand notice is issued below exh.12 by the partner of G.Aveda Enterprise wherein, the names of two partners are mentioned i.e. Jagrajsinh Gurmukhsinh Dhillon and Chintan Upadhyaya. 13. By accepting that there is no firm, namely, G.Aveda Enterprise in existence, the respondent – accused had tried to establish his defense that no transactions were ever carried out with the firm, namely, G.Aveda Enterprise. There was no any rectification notice issued to the respondent – accused, stating that the notice which was issued in the name of Avedha Enterprise is the wrong name, in fact, G.Aveda Enterprise is the correct name. Not only that but, in the memo of the complaint also, no any correction was sought or made by the complainant during the trial. 14. As per the provisions of the Negotiable Instruments Act, the notice of demand for payment is mandatory. Service of notice by the complainant in whose favour, the cheque was issued, is a condition precedent for filing of the complaint. The conditions pertaining to the notice to be given to the drawer have been formulated and incorporated in clauses B to C of the proviso to Section 138 of the Act. Clause B of the proviso provides for a notice to give an opportunity to the drawer to make payment. Under the provisions, the payee or the holder in due course of the cheque, as the case may be, was required to make demand for the said payment of money by giving notice, in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. On the part of the payee, he has to make a demand by giving a notice in writing. Therefore, it is for the payee to perform the formal process by sending the notice to the drawer on the correct name and address. 15. On the part of the payee, he has to make a demand by giving a notice in writing. Therefore, it is for the payee to perform the formal process by sending the notice to the drawer on the correct name and address. 15. In the case herein, the notice was issued by G.Aveda Enterprise as well as the complaint was also filed by the said G.Aveda Enterprise and the disputed cheque which is produced below exh.11, was issued in favour of the Avedha Enterprise. During the trial, the rectification application was filed by the complainant on 17.09.2019 wherein, he sought to add the name of the other partner, namely, Chintan Upadhyaya as a witness, which was granted and thereafter, the rectified complaint was filed on 17.09.2019 wherein also, the name of the firm is mentioned as G.Aveda Enterprise. Therefore, the complaint as well as the notice itself do not satisfy the requirement of Section 138 of the Negotiable Instruments Act and on that ground, the learned trial Court has acquitted the respondent – accused from the charges. 16. The cross-examination was conducted further from where, it comes on record that the complainant has received the certain amounts. In the cross-examination, it is admitted that; “as per the statement produced below exh.20, the amount of Rs.42 lacs was given to M.D. Enterprise. As per the statement of M.D. Enterprise, amount of Rs.1,14,00,000/- found to have been credited. The disputed cheque was issued by Hemant Pravinchandra Zariwala. From exhs.18 and 19, which are the statements of Hemant Pravinchandra Zariwala, it comes on record that on 14.05.2015, amount of Rs.4 lacs was given by Hemant Pravinchandra Zariwala. On 07.04.2016, amount of Rs.90 lacs was given by said Hemant Pravinchandra Zariwala. On perusing exh.19, upto 28.03.2017, by way of different entries, said Hemant Pravinchandra Zariwala had paid Rs.1,95,00,000/-. The complainant has returned the amount of Rs.1,27,00,000/- as per the statement below exh.19. As per the statement below exh.23, there is a credit of Jahnvi Agro Industries for the amount of Rs.51 lacs and the complainant has to pay the said amount. As per exh.23, on 31.03.2016, Jahnvi Agro Industries was demanding the amount of Rs.4,03,745/- from Avedha Enterprise. On 31.03.2017, the said amount comes to Rs.27,56,155/-. The statement below exh.23 is a correct statement. Jahnvi Agro Industries was demanding the amount from Avedha Enterprise on 31.03.2018 of Rs.46,15,730/-. As per exh.23, on 31.03.2016, Jahnvi Agro Industries was demanding the amount of Rs.4,03,745/- from Avedha Enterprise. On 31.03.2017, the said amount comes to Rs.27,56,155/-. The statement below exh.23 is a correct statement. Jahnvi Agro Industries was demanding the amount from Avedha Enterprise on 31.03.2018 of Rs.46,15,730/-. On 31.03.2019, as per exh.23 statement, the due of Avedha Enterprise from Jahnvi Agro Industries is of Rs.31,15,903/-. There was no any transaction after 31.03.2019 between Jahnvi Agro Industries and Avedha Enterprise. As per the statement below exh.23, Avedha Enterprise was demanding the amount of Rs.31,15,903/- from Jahnvi Agro Industries on 31.03.2019. On perusing exhs.21 to 23, the debt was consolidated of Dhruvi Hemant Zariwala and Jahnvi Agro Industries was Rs.34,15,903/-. On perusing exhs.18, 19 and 20, there is a due of Avedha Enterprise to Hemant Pravinchandra Zariwala and M.D. Enterprise of Rs.1,35,18,520/- and this amount is as per the statement of 31.03.2018. The bills at exh.9 are not of G.Aveda Enterprise. No any signature is made by any person in the said exh.9, no vehicle number is mentioned to show that the goods were transported and no e-way bills were produced with regard to exh.9. It was clarified that within a periphery of 30 kms., requirement of e-way bill does not arise. No consent was taken for filing the complaint of the second partner, namely, Chintan Upadhyaya. It is true that in the complaint, the amount of Rs.80 lacs was shown which was mentioned differently. Hemant Pravinchandra Zariwala was not joined on his personal capacity neither any notice was issued to him. The notice was issued to Hemant Pravinchandra Zariwala as a partner and the cheque was issued by Hemant Pravinchandra Zariwala as a personal capacity. Hemant Pravinchandra Zariwala had given application for stop payment and the cheque was returned with an endorsement “stopped payment”. Though in the rectification complaint, the name of the other partner i.e. Chintan Upadhyaya has been shown as a witness but, the complainant states that I don’t want to examine him.” 17. Considering the aforesaid cross-examination, it transpires that though the amount has been paid to the complainant but, the same is not disclosed in the complaint neither the other partner was examined as a witness nor his consent was produced. In fact, on the contrary, the complainant stated that he did not want to examine the other partner as a witness. Considering the aforesaid cross-examination, it transpires that though the amount has been paid to the complainant but, the same is not disclosed in the complaint neither the other partner was examined as a witness nor his consent was produced. In fact, on the contrary, the complainant stated that he did not want to examine the other partner as a witness. This conduct of the complainant suggests that the case, as projected by him, is not the same and, therefore, the inference can be drawn that he is suppressing the material facts before the Court of law. 18. Therefore, the complainant, who is the drawee of the cheque, fails to prove the existence of the debt or liability after rebutting the presumption which is in favour of the complainant by the respondent – accused. 19. 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." 20. 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." 20. In view thereof, this Court comes to the conclusion that there is no any illegality, perversity or impropriety found in the impugned judgment and order of acquittal passed by the learned trial Court as the same is passed after considering the evidence in detail and, therefore, the same is not required to be interfered with. 21. This being a criminal 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.” 22. 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.” 22. Resultantly, this appeal fails and the judgment and order of acquittal passed by the learned Additional Chief Metropolitan Magistrate, N.I. Act Court No.31, Ahmedabad dated 06.05.2023 in Criminal Case No.85308 of 2019. 23. Record and Proceedings be sent back to the concerned learned trial Court.