ORDER : ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 23266 of 2023 1. This application is filed seeking leave to prefer an appeal against the against the judgment and order of acquittal passed below Exh.20 by the learned 5th Additional Chief Judicial Magistrate, Bharuch in Criminal Case No.15101 of 2017. 2. It is the case of the complainant that the complainant and accused were known to each other and accused had approached the complainant with a request to lend an amount of Rs.1,00,000/- in the month of January, 2021. The complainant had lent the amount from his own personal savings and at that time an assurance was given that the said amount would be repaid within a period of 6 months and on repeated demands the cheque bearing No.300014 dated 09-11-2021 of Rs.1,00,000/- was issued in the favour of the complainant. 2.1. On depositing the said cheque with the Bank, the same was dishonored with an endorsement of ‘funds insufficient’ and therefore, after following the due procedure under the Negotiable Instruments Act(hereinafter referred to as the NI Act), a private complaint came to be filed for the offence punishable under section 138 of the NI Act. On being summoned the respondent-accused appeared and his plea was recorded, wherein he pleaded not guilty and claimed to be tried. 3. In order to prove the guilt of the accused, the complainant produced the documentary evidence which is in the nature of cheque return memo, notice etc. and he himself was examined below Exh.4. On filing the closing pursis the statement under section 313 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.) was recorded wherein the accused had pleaded that no such cheque was issued in favour of the complainant, neither he knows the complainant. The complainant has obtained the cheque from his brother namely Manojbhai and has filed the false case by misusing the said cheque. 4. Learned trial court, after considering the evidence placed on record and the arguments advanced by the learned advocates for the respective parties has passed the judgment and order of acquittal which is the subject matter of the challenge before this Court. 5. Heard the learned advocate Mr.Anurag Agarwal for the applicant-original complainant. 5.1. 4. Learned trial court, after considering the evidence placed on record and the arguments advanced by the learned advocates for the respective parties has passed the judgment and order of acquittal which is the subject matter of the challenge before this Court. 5. Heard the learned advocate Mr.Anurag Agarwal for the applicant-original complainant. 5.1. Learned advocate Mr.Agarwal submits that the judgment and order of the learned trial court was passed only on the basis that complainant had denied to examine his brother namely Mr.Manojbhai and did not show readiness to produce his bank statement for the year January, 2021. 5.2. Learned advocate Mr.Agarwal submits that, it is on the respondent-accused to rebut the presumption which is in favour of the complainant under section 118 and 139 of the NI Act and it is the duty of the respondent-accused to prove his defence through independent evidence or by creating circumstances. Learned advocate submits that if the complainant had not shown readiness to examine the brother Mr.Manojbhai, then the said witness could have examined by the respondent-accused to prove his defence, however instead of adopting that method learned trial court has drawn the adverse inference against the complainant and had come to the conclusion that complainant fails to establish the legally enforceable debt against the respondent- accused. 6. Learned advocate Mr.Agarwal has relied on the decision rendered by the Apex Court in the case of “Uttam Ram versus Devinder Singh Hudan and others reported in 2019 10SCC 287” and submitted that, dishonour of the cheque carries a statutory presumption of consideration and after establishing that holder of the cheque has received the cheque from the respondent- accused the burden would be shifted on the respondent- accused to rebut the presumption that the cheque was not issued for any debt or other liability. Learned advocate submits that without discharging that burden, the learned trial court has acquitted the respondent- accused and therefore the leave as prayed for is required to be granted and appeal is to be admitted. 6.1. Learned advocate also relies on the decision rendered by the Apex Court in the case of “Ashwinbhai H.Acharya Versus Jayeshbhai Madhubhal Madhubhai Chevdawala & Another reported in 2009 SCC OnLine Guj 9110 and submitted that merely because bank account was not produced, would not lead to the conclusion that the false case is filed. 7. 6.1. Learned advocate also relies on the decision rendered by the Apex Court in the case of “Ashwinbhai H.Acharya Versus Jayeshbhai Madhubhal Madhubhai Chevdawala & Another reported in 2009 SCC OnLine Guj 9110 and submitted that merely because bank account was not produced, would not lead to the conclusion that the false case is filed. 7. Considering the submissions made by the learned advocate for the applicant at this stage section 118 and 139 of the Negotiable Instruments Act is required to be re-looked which is reproduced hereinbelow: “Section 118 – Presumptions as to negotiable instruments Until the contrary is proved, the following presumptions shall be made: 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; as to date; that every negotiable instrument bearing a date was made or drawn on such date; as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; as to time of transfer; that every transfer of a negotiable instrument was made before its maturity; as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped; 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. Section 139 in The Negotiable Instruments Act, 1881 139.Presumptioninfavourofholder.—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. Section 139 in The Negotiable Instruments Act, 1881 139.Presumptioninfavourofholder.—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. It transpires from the record that, as per the complainant’s case, the amount was lent in the year January, 2021 to the accused and for the payment of the said amount the cheque of Rs.1,00,000/- was issued in favour of the complainant. Respondent-accused did not dispute the signature on the cheque, however pleaded that the cheque was obtained from the brother of the complainant namely Mr.Manojbhai and the same was misused. In order to rebut the presumption which is in favour of the complainant, the complainant was cross- examined and following admissions were made by the complainant during his cross examination that, it is true that for how much time, how much amount was lent earlier is not stated in my complaint or in chief examination. Earlier there was a transaction with the accused in cash. My brother namely Mr.Manojbhai was working at CNG pump and the husband of accused was also working with my brother. The mobile number of my brother is 9726216810. It is true that alongwith my brother Mr.Utpalbhai, Mr.Kiranbhai Vasava, Mr.Vikkibhai and Mr.Jigarbhai were also serving. On the mobile number of my brother, there is Google Pay and whether the google pay and phone pay is working or not I am not in knowledge of the same. Exh.11 notice did not contain my signature, therefore what is written in notice I cannot say. Exh.9 cheque have been written by different pen in the column date, name and amount. Exh.7 statement of the accused and Exh.9 cheque, in both of these there is different signature of the accused. I am not ready to produce the bank statement from January, 2021. The amount which is lent was in whose presence and at what time, I cannot say that. I am not having the knowledge that Rs.10,000/- was transferred through phone pay by the husband of the accused to Mr.Manojbhai. I am not ready to examine my brother as a witness.” 9. The amount which is lent was in whose presence and at what time, I cannot say that. I am not having the knowledge that Rs.10,000/- was transferred through phone pay by the husband of the accused to Mr.Manojbhai. I am not ready to examine my brother as a witness.” 9. It transpires from the record that there were no documents except the cheque produced before the learned trial court suggesting that transaction between the complainant and accused had taken place. Complainant, though admitted that the husband of the accused as well as the brother of the complainant namely Mr.Manojbhai were serving in the same CNG pump, has shown unawareness with regard to the transaction between the accused and the brother of the complainant. When the suggestion was put by the learned advocate for the respondent-accused with regard to examining the brother as a witness, it was denied by the complainant. Not only that, the statement which was called i.e. the bank statement for the period January, 2021 for that also the complainant had stated that he is not ready to produce the same. Though in the complaint, it is stated that the complainant and the accused were known to each other, however in the cross-examination, he is not aware about the mobile number of the accused. Earlier the transaction was admitted, but there were no details on which date, what time and for how much amount had the complainant earlier lent to the respondent-accused. Complainant had admitted that the signature in the cheque as well as the statement recorded under section 313 is different. It is true that the cheque was not dishonoured on the ground of differ in the signature, however at the same time when the complainant himself is admitting before the learned trial court that signature is different from the statement recorded under section 313 as well as the writings on the cheque are made with different pen suggests that, the probable defence which was raised by the accused that the cheque which was obtained from Mr.Manojbhai who is the brother of the accused was misused, appears to be correct. 10. 10. The judgment which was relied by the learned advocate on the ground that, income tax records were not produced and in which it is held that, it is not a civil proceedings, but that would be different from the facts of the instant case as here the bank statement which was called upon was denied to be produced. Withholding the documents which are in possession of the complainant, suggests that complainant did not come with clear hands and is hiding the facts before the learned trial court and in the opinion of this Court, complainant withholding the production of very relevant evidence would amount to rebuttal of the presumption which is in favour of the complainant. 11. To rebut the presumption, it is not necessary for the accused to come into witness box and lead the evidence independently. Infact from the evidence which was produced by the complainant in support of the complainant can also be basis for the rebuttal of the presumption if the respondent-accused successfully establishes the circumstances which were created suggests that, case is not as it is projected by the complainant. 12. The use of phrase that “until the contrary it is proved” under section 118 of the Act and use of the words “unless the contrary is proved” under section 139 of the Act read with definition of “may presume and shall presume” as given under section 4 of the Evidence Act makes it at once clear that presumption to be raised under both the provisions are rebuttable, when the presumption is rebuttable it only points out that party on whom the duty of going forward with evidence lies, on the fact presumed when the party has produced evidence fairly and reasonably tending to show that real fact is not as presumed, the purpose of presumption is over. What is presumption is discussed by the 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. “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”. 13. For the foregoing reasons, this Court finds no infirmity with the impugned judgment and therefore leave as prayed for does not require to be granted. Resultantly this application for seeking leave to prefer an appeal is rejected. ORDER IN F/CRIMINAL APPEAL NO. 859 of 2024 In view of the dismissal of the application for seeking leave to prefer an appeal, registration of appeal number is also refused.