JUDGMENT : Order in R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9188 of 2023 As this Court deems it fit to decide the case on merits, the formal leave seeking leave to prefer an appeal is granted. Application seeking leave to prefer an appeal stands disposed of. Order in R/CRIMINAL APPEAL NO. 1140 of 2023 1. This appeal is filed by the present appellant – complainant under Section 378 of Code of Criminal Procedure challenging the judgment and order passed by learned 6th Judicial Magistrate First Class, Mehsana, dated 1st April, 2023 in Criminal Case No.6928 of 2020. 2. It is the case of the complainant that complainant is doing the business in the name and style of Hotel Sahara Bridge. Brother of the accused No.2, namely, Sanjaybhai Ganpatbhai Patel is engaged in the business of construction of residential house of Government as well as private in the name and style of Maruti Constructions at Mehsana. As complainant was in need of the house at Mehsana, complainant came into the contact with accused No.2 and his brother Sanjaybhai and both have decided to give house to the complainant and therefore, complainant made payment to accused No.2 and his brother, Sanjaybhai with regard to purchase of the property of the land situated at Rangpur village. Due to Covid-19, hotel business of the complainant was closed and therefore, complainant had vacated the rented house, which was at Mehsana and returned back to the Ahmedabad. Thereafter, complainant dropped the idea to buy own house at Mehsana and met to the accused No.2 and his brother, Sanjaybhai and asked to repay the amount of Rs.11 lacs, which was given to purchase the property at Mehsana. Accused No.2 had given the cheque bearing Cheque No.463630 dated 5th October, 2020 for the amount of Rs.11 lacs with an assurance that on depositing the said cheque, the amount would be credited in the account of the complainant. On presenting the cheque with the bank, it was returned unpaid with an endorsement of payment stopped by the drawer. That after receiving the returned memo, the demand notice was issued to respondent-accused on 28th October, 2020, which was served upon respondent-accused on 31st October, 2020. Demand notice was replied by accused on 11.11.2020 and accused had denied legal debt of the complainant. That after receiving the returned memo, the demand notice was issued to respondent-accused on 28th October, 2020, which was served upon respondent-accused on 31st October, 2020. Demand notice was replied by accused on 11.11.2020 and accused had denied legal debt of the complainant. Thereafter, the complaint came to be filed by the complainant being Private Complaint No.6928 of 2020 on 2.12.2020. The learned trial Court had issued the summons under Section 204 of the Code of Criminal Procedure and on the appearance of the accused, plea was recorded below Exh.8, 9 and 10. Accused had pleaded not guilty and claimed to be tried. To prove the case, the complainant had himself was examined below Exh.25 and had produced the documentary evidence in the nature of cheque, Exh.18, return memo Exh.19, demand notice Exh.10, online delivery status report of the postal department Exh.21 to 23, reply to the demand notice and counter notice given by the accused person Exh.24. On being filed the closing pursis by the accused persons below Exh.30, further statement of the accused were recorded under Section 313 of the Code of Criminal Procedure whereby accused had denied the incriminating material put before him and contended that disputed cheque was obtained by the complainant from one Sureshbhai Patel against whom the accused had filed the complaint under the Negotiable Instruments Act. To prove the defence, the accused No.2 was examined himself at Exh.41 and also examined the Bank Officer Mr.Nandan Priyadarshi at Exh.50. In addition to the aforesaid oral evidence, the documentary evidence in the nature of certified copy of stop payment application given by the accused to the Indian Bank, Navrangpura Branch produced below Exh.36, letter of Branch Manager replying to the stop payment application Exh.37, Bank statement lf Jay Steel Traders for the period from 30th May, 2016 to 30th May, 2017 was produced below Exh.38, certified copy of the Criminal Case filed against Patel Sureshbhai Mafatlal by the accused No.2 was produced below Exh.39 and the copy of the compliant filed by accused No.2 against the present complainant, Patel Sureshbhai before Ramol Police Station for the offence punishable under Sections 406, 420, 465, 467, 468, 471 114 and 34 of Indian Penal Code produced below Exh.40. After evaluating the material placed before the learned trial Court by both the parties and the arguments advanced, learned trial Court comes to the conclusion that complainant fails to establish the case against the respondent-accused and therefore, the complaint was dismissed and accused was acquitted from the charges. The aforesaid order is impugned before this Court in the present appeal. 3. Heard learned advocate, Mr.Kamlesh Kotai for the appellant. 4. Learned advocate, Mr.Kotai submits that when the signature on the cheque was not denied by the respondentaccused, it is for the respondent-accused to establish that cheque was not issued to discharge of whole or in part of any debt or other liability. Under Section 139 of the Negotiable Instruments Act, the presumption which is in his favour of the complainant that unless the contrary is proved, it would be presumed that holder of the cheque has received the said cheque to discharge of whole or in part of debt or other liability. Mr.Kotai, learned advocate submits that effect of this presumption is to place the evidential burden on the respondentaccused of proving the cheque that same was not issued towards the discharge of any liability. Mr.Kotai, learned advocate submits that though this presumption was not rebutted by respondentaccused, learned trial Court had shifted onus to prove the complaint on the complainant against the settled principle of law. Learned advocate further submits that bare denial of the issuance of the cheque ought not to have been accepted by the learned trial Court as improbable defence was raised that this cheque was received by the complainant from Sureshbhai against whom the accused No.2 had filed the private complaint under Section 138 of the Negotiable Instruments Act. Mr.Kotai, learned advocate further submits that if the private complaint was filed against the said Sureshbhai then how Sureshbhai would in the possession of the cheque of the accused No.2 and the same would have been received from the said Sureshbhai by the complainant. Learned advocate submits that though this improbable defence ought not to have been accepted by the learned trial Court, the judgment and order of acquittal was passed only on that ground. Learned advocate further submits that as the order was passed without giving proper weightage to material on record, the same requires to be interfered with and respondent-accused is required to be convicted and required to be punished accordingly. 5. Learned advocate further submits that as the order was passed without giving proper weightage to material on record, the same requires to be interfered with and respondent-accused is required to be convicted and required to be punished accordingly. 5. Considering these submissions, before entering into the merits of the case, relevant provisions 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 order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; 6. as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped; 7. that holder is a holder in due course; that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an SP offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burthen of proving that the holder is a holder in due course lies upon him. 138 Dishonour of cheque for insufficiency, etc., of funds in the account. 138 Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.] Section 139 in The Negotiable Instruments Act, 1881 139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. 6. What is presumption that is discussed by the Hon’ble Apex Court, in the case of M.S.Narayana Menon vs . 6. What is presumption that is discussed 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 presumption is provided in para-40, which is reproduced herein below. 40. “In P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd edition, at page 3697, the term 'presumption' has been defined as under: "A presumption is an inference as to the existence of a fact not actually known arising from its connection with another which is known. A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof. A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged but of which there is no direct proof. It follows, therefore that a presumption of any fact is an inference of that fact from others that are known". (per ABBOTT, C.J., R. v. Burdett, 4 B. & Ald, 161) The word 'Presumption' inherently imports an act of reasoning a conclusion of the judgment; and it is applied to denote such facts or moral phenomena, as from experience we known to be invariably, or commonly, connected with some other related facts. (Wills on Circumstantial Evidence) A presumption is a probable inference which common sense draws from circumstances usually occurring in such cases. The slightest presumption is of the nature of probability, and there are almost infinite shades from slight probability to the highest moral certainty. A presumption, strictly speaking, results from a previously known and ascertained connection between the presumed fact and the fact from which the inference is made." Having noticed the effect of presumption which was required to be raised in terms of Section 118(a) of the Act, we may also notice a decision of this Court in regard to 'presumption' under Section 139 thereof”. 7. Keeping in mind the aforesaid settled position of law, if instant case is considered then it is the case of the complainant that the cheuqe issued by the respondent-accused in the year 2020 to repay the amount, which was given for purchasing the property at Mehsana to the accused. 7. Keeping in mind the aforesaid settled position of law, if instant case is considered then it is the case of the complainant that the cheuqe issued by the respondent-accused in the year 2020 to repay the amount, which was given for purchasing the property at Mehsana to the accused. Complainant himself was examined below Exh.25 and in the cross examination conducted by the learned advocate for the accused, complainant admits that on issuing the demand notice, reply was given by the respondent-accused below Exh.24. In the said reply, counter notice was issued by the respondent –accused, which was not replied by the complainant. Endorsement on the returned memo below Exh.19, reason mentioned is not with regard to ‘insufficient fund’. He admitted that disputed cheque was returned with endorsement of stop payment. He admits that Patel Sureshbhai Mafatlal, who is doing the business in the name and style of Bhupat Traders is friend of the complainant. He denied the suggestion of the complainant that said Sureshbhai is in need of money, therefore, accused had given three cheques to Sureshbhai Mafatlal Patel. He denied with regard to the aspect that out of the said cheques, two cheques bearing No.463633 and 464634 were encashed by Sureshbhai in the year 2016. He denied the suggestion that these disputed cheques were given to Sureshbhai. On being pursuing the cheque below Exh.18, he admits that this is old cheque and cheque is having strips on the back side. He admits that cheque below Exh.18, no name of the partnership firm or partners are mentioned. He admits that in the reply to the demand notice below Exh.24, the accused had stated that stop payment application was given in the year 2016 in the Indian Bank requesting to stop payment of the said cheque. The said application is of dated 24th May, 2016. He admits with regard to the knowledge that on 24th May, 2016, accused No.2 had given an application with the Bank with instructions not to encash the disputed cheque and that fact is mentioned in the notice. He admits that he does not have any evidence to show that he is having financial capacity to lend the amount of Rs.11 lacs. 8. He admits that he does not have any evidence to show that he is having financial capacity to lend the amount of Rs.11 lacs. 8. To rebut the presumption, the accused, in addition to the cross examination of the complainant, had examined himself below Exh.41 and stated in his chief examination that he lent the money through the cheque bearing No.463634 and 463633 of Rs.9 Lacs on 30th May, 2016. On raising the demand of the aforesaid amount, cheque was issued, which was dishonored and therefore, private complaint being Criminal Case No.6196 of 2020 was filed with the learned trial Court. The third cheque was misplaced by the said Sureshbhai and for that the application for stop payment was given on 24th May, 2016 requesting to stop payment of the cheque No.463630 i.e. disputed cheque. It is further stated in the chief examination that the complainant obtained the cheque from Sureshbhai Mafatbhai Patel and filed the present complaint. As the respondent-accused had filed the Criminal Case against said Sureshbai Mafatbhai Patel, keeping grudge of the said complaint, the present complaint is filed. Application given by the respondent-accused was produced along with his chief examination. The reply to the said stop payment application and private complaint, which was filed by the respondent-accused against said Sureshbhai Mafatbhai Pael and the Bank statement showing that the amount was lent through the cheque to said Sureshbhai Patel in the year 2016 was also produced by the respondent-accused. In the cross examination conducted by the learned advocate for the complainant, no any material aspect was proved by the learned advocate. 9. Respondent-accused had also examined Bank Officer who confirms with regard to the stop payment of the cheque bearing cheque No.463630 on 24th May, 2016. In the cross examination of the said statement, complainant had put the question which was answered in affirmative that after issuance of the cheque, if party does not want to make the payment then the stop payment application can be given. From the aforesaid evidence, it transpires that story which was put by the complainant that cheque was issued in the year 2020 was falsified as from the application which was produced below Exh.37, it transpired that disputed cheque was misplaced long back and for that application was given by the respondent-accused and reasons mentioned in the return memo also confirms with regard to the aforesaid aspect. 10. 10. The demand notice which was replied by the respondentaccused below Exh.24, wherein also, the respondent-accused had denied with regard to the lending of money by the complainant to purchase the property. In the said reply cum counter notice, the respondent-accused had averred that this cheque though it was stop payment long back, was misused by the complainant and for that he may initiate the proceedings under the Indian Penal Code. The respondent-accused had also produced the copy of the complaint below Exh.40, which was filed against the present complainant and said Sureshbhai before the Ramol Police Station praying to register the FIR for the offence punishable under Sections 406, 420, 465, 467, 468, 471, 114 and 34 of the Indian Penal Code. 11. It is settled position of law that presumption is in favour of the complainant as provided under Sections 118 and 139 of the Negotiable Instruments Act but if the said presumption was rebutted by the respondent-accused by creating the circumstances from the evidence led by the complainant or by proving the same through the independent evidence, then onus is again to be shifted on the complainant to prove the case beyond reasonable doubt. The use of phrase until the contrary is proved under Section 118 of Negotiable Instruments Act and unless contrary is proved under Section 139 of the Negotiable Instruments Act is to be read with the definition of may presume and shall presume given under Section 4 of the Evidence Act. The presumption which is available under both these sections are rebuttable presumption when presumption is rebuttable it only points out that party on whom lies the duty of going forward with the evidence on the fact presume and when party had adduced the evidence tending to show that the real fact is not as presumed, the purpose of rebutting presumption is served. 12. This Court has considered the decision rendered by the Hon’ble 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. 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. 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." 13. In view of the same, this Court comes to conclusion that the accused had discharged its burden by cross examining the complainant by creating the circumstances to show that case is not as which was projected by the complainant in his complaint and in addition to that, he produced the application below Exh.36 and examined the bank officer below Exh.50, which lead to the conclusion that accused is not liable for the payment of the cheque and there is no legally enforceable debt qua accused. 14. In view of above, there is no illegality or perversity found in the impugned judgment and order of acquittal and therefore, the same is required to be confirmed and appeal is required to be dismissed. 15. Hence, this criminal appeal stands dismissed.