ORDER : S.V. PINTO, J. 1. The present application is filed by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking leave to file an appeal against the judgment and order dated 25.10.2024 passed by the learned Additional Chief Judicial Magistrate, Gandhinagar (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 01 of 2021, whereby the respondent No. 1 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N I Act”). 1.1. The respondent No. 1 is hereinafter referred to as “the accused” as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts culled out from the memo of the present application as well as the impugned judgment and order and paper book filed by the applicant are as under: 2.1. The applicant filed a complaint against the accused under Section 138 of the Act, as the accused had taken a loan of Rs.15,00,000/- for social reasons from the applicant and the accused had issued cheque No.000008 for the amount of Rs.15,00,000/- dated 05.08.2020 from his account with State Bank of Baroda, Khedbrahma Branch, Sabarkantha. The applicant deposited the cheque in his account and the cheque was dishonored and the reason mentioned in the return memo dated 10.08.2020 was “Funds Insufficient”. The applicant informed the accused regarding the dishonor of the cheque and the accused instructed the appicant to deposit the cheque after two months. The applicant deposited the cheque in his account on 03.11.2020, but the cheque was dishonored and the reason mentioned in the return memo was “Funds Insufficient”. The applicant sent the statutory demand notice to the accused on 24.11.2020 by R.P.A.D which was duly served on 25.11.2020 and an evasive reply was given by the accused and no payment was made and hence the applicant filed the criminal complaint before the Court of the Chief Judicial Magistrate, Gandhinagar under Section 138 of the N I Act, 1881 which was registered as Criminal Case no. 01 of 2021. 2.2. The accused was served with the summons and the accused appeared before the learned Trial Court and after his plea was recorded the evidence of the applicant was taken on record. 01 of 2021. 2.2. The accused was served with the summons and the accused appeared before the learned Trial Court and after his plea was recorded the evidence of the applicant was taken on record. The applicant and one witness were examined on oath and 06 documentary evidences were produced in support of his case and after the closing pursis at exhibit No. 25 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused stepped into the witness box and one witness were examined on oath by the accused in his defence and after the arguments of the learned advocates for both the parties were heard, by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N I Act. 3. Being aggrieved and dissatisfied with the same, the applicant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law. 4. Heard learned advocate Mr. Sachin D. Panchal appearing for the applicant and learned APP Mr. Utkarsh Sharma for the respondent – State. 5. Learned Advocate Mr. Sachin D. Panchal for the applicant submits that the learned Trial Court has not appreciated that the applicant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The applicant has proved that the cheque was written by the accused and it was dishonoured and as the applicant is the holder in due course of the cheque in question the statutory presumption under Section 139 of the N I Act is to be drawn in favour of the applicant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the NI Act in proper perspective. The fact of the amount paid by the applicant to the accused is not negated, but the learned Trial Court has disbelieved the same. The accused had failed to rebut the presumption and hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted. 6. Learned APP Mr. The fact of the amount paid by the applicant to the accused is not negated, but the learned Trial Court has disbelieved the same. The accused had failed to rebut the presumption and hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted. 6. Learned APP Mr. Utkarsh Sharma for the respondent – State has submitted that the learned Trial Court has appreciated all the evidence in detail in light of the citations referred to in the judgement and has passed the judgement and order of acquittal which is proper and no interference is required and hence the application for leave to appeal must be rejected. 7. With regard to the facts in the present case, we can also refer to the following observations made Apex Court in Rangappa vs Sri Mohan reported in (2010) 11 SCC 441 in Para 14 wherein it is observed as under: “14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of ‘preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 7.1 The Apex Court in the case of Basalingappa vs. Mudibasappa reported in 2019 0 AIR (SC) 1983 has observed in Para 23 and 28 as under: “23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: (i) 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. (ii) The presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or 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. (iv) 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. (v) It is not necessary for the Accused to come in the witness box to support his defence. 24. xxxx 25. xxxx 26. xxxx 27. xxxx 28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs. 6 lakhs given to the Accused, within 02 years, amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence.” 8. In light of the above settled principles of law and considering the arguments advanced by the learned advocates for the parties and on perusal of the record of the case the affidavit of examination in chief of the complainant has been produced at exhibit 04 wherein the complainant has narrated the facts of the complaint on oath. From the record of the case, it transpires that after the cheque had returned unpaid the demand statutory notice which is produced at exhibit 12 was served to the accused and the accused sent a reply to the notice which is produced at exhibit 14. The main contentions raised in the reply to the notice is that the applicant and the accused were never known to each other and had never met each other and hence the question of demanding Rs.15,00,000/- was not possible. The main contentions raised in the reply to the notice is that the applicant and the accused were never known to each other and had never met each other and hence the question of demanding Rs.15,00,000/- was not possible. The facts stated in the reply to the notice is that in July 2018, Manishbhai Cheljibhai Patel, the brother of the accused had taken an amount of Rs.2,00,000/- from one Vijaysinh Chauhan, who was known to the applicant and the amount was returned on 14.08.2019 by a bearer cheque of Axis Bank, Satlasana Branch. At the time of taking the amount from Vijaysinh Chauhan, some blank cheques, including the cheque in question were taken as security by Vijaysinh Chauhan and the said cheques were not returned after the amount was repaid and the cheque of the accused has been misused by the applicant. The cheque was demanded back from the applicant in the reply to the notice. During the cross-examination by the learned advocate for the accused, the applicant has stated that he is doing his business in a rented shop in the name of Alankar Chuda House and is doing the business of Cutlery since 2014. He is paying a monthly rent of Rs.7,000/- and is earning an amount of Rs.5,00,000/- to Rs.5,50,000/- per year and has five members, including his parents in the family and they all reside together. The applicant has stated that he was ready to produce his Income Tax Returns for the years 2016, 2017 and 2018 before the learned Trial Court. His father was a government servant and was retired and was earning a monthly pension of Rs.25,000/-. That he knows that the accused is a teacher but does not know whether he is a high school teacher and does not know the family details of the accused. The accused had demanded the amount of Rs.15,00,000/- somewhere in the sixth month of 2018, and he had given the amount within 4 to 5 days. The amount was given in Sector 30 at the place of Vijaysinh Somsinh Chauhan, who is his maternal uncle’s son and when he had given the amount, he did not take any receipt or document except the cheque. The amount was given in Sector 30 at the place of Vijaysinh Somsinh Chauhan, who is his maternal uncle’s son and when he had given the amount, he did not take any receipt or document except the cheque. He had taken the cheque on the same day when the amount was given, but he does not remember the date when the amount was given and he had given the amount from his personal savings and after borrowing some amount from his father. The applicant has stated that he had the amount in cash with him as he wanted to purchase a shop, but at that time, he did not purchase the shop. He had contacted Manishbhai, the elder brother of the accused before giving the amount and he did not have to take any interest on the amount and the amount was to be returned within a period of two years. That he had never spoken to the accused on his mobile, and besides this transaction, no other transaction had taken place with the accused. The applicant has thereafter stated that the amount was given for 2 to 3 months and it was not entered into any books of account and no document was executed for the amount. The witness has stated that he had given Rs.3,00,000/- from his personal savings and his father had given him Rs.5,00,000/-, and the remaining amount was taken from his brother-in-law and father-in-law and his maternal uncle’s son. He does not know how much amount was given by his maternal uncle’s son, but his brother-in-law and father-in-law had given him about Rs.4,75,000/-. The amount that was given to the accused was not shown in his Income Tax Returns and in the cheque produced at exhibit 6, besides the signature, the remaining details have been filled in by himself in his own handwriting. The bank pay in slip produced at Exhibit 9 was filled in by his maternal uncle’s son, Vijaysinh Somsinh Chauhan. 8.2 The applicant has examined Vijaysinh Somsinh Chauhan at exhibit 21 and the witness has supported the case of the applicant in his affidavit of examination in chief. The bank pay in slip produced at Exhibit 9 was filled in by his maternal uncle’s son, Vijaysinh Somsinh Chauhan. 8.2 The applicant has examined Vijaysinh Somsinh Chauhan at exhibit 21 and the witness has supported the case of the applicant in his affidavit of examination in chief. During the cross-examination the witness has stated that he was doing the business of buying and selling cars and is also running a Milk Parlour and earning an amount of Rs.5,00,000/- to Rs.10,00,000/- per annum from the car business and an amount of Rs.5,00,000/- per annum from his Milk Parlour. That he was seeing the accused for the first time in the Court and in his presence no transaction had taken place between the applicant and the accused. The applicant was his cousin brother and the cheque of Rs.2,00,000/- of Axis Bank was encashed in his son Dharmendrasinh’s bank account. The witness has denied that Manishbhai had given two blank cheques of HDFC Bank and two blank cheques of SBI Bank and one blank cheque of Bank of Baroda from the account of the accused, but immediately thereafter the witness has admitted that out of the cheques he had filed Criminal Case No. 5133 of 2021 in the Court at Gandhinagar for a cheque of Rs.22,00,000/- against Manishbhai. 8.3. The accused has stepped into the witness box and deposed on oath at exhibit 27 and has denied all the contents of the complaint and has stated his defence as mentioned in the reply to the notice on oath. During the cross-examination, the accused has stated that he knows Vijaysinh Somsinh Chauhan and his elder brother Manishbhai Cheljibhai Patel had taken an amount of Rs.2,00,000/- from Vijaysinh Somsinh Chauhan and the amount was repaid by a bearer cheque of Axis Bank Satlasana Branch on 14.08.2019. That he had given the cheque as a security for the Rs.2,00,000/- and in the counter of the cheque, the same was written. 8.4. The accused has examined his brother, Manishkumar Cheljibhai Patel at exhibit 29 and in the examination in chief the same facts as narrated by the accused have been stated on oath. During the cross-examination, the witness has stated that he did not give any notice to Vijaysinh Somsinh Chauhan for the blank cheques and he does not know the complainant. 9. During the cross-examination, the witness has stated that he did not give any notice to Vijaysinh Somsinh Chauhan for the blank cheques and he does not know the complainant. 9. On appreciation of the entire evidence of the applicant on record it appears that in the cross examination of the complainant, he has stated that the amount of Rs.15,00,000/- was given to the accused at the house of Vijaysinh Somsinh Chauhan in Sector 30 and has tried to raise a contention that Vijaysinh Somsinh Chauhan was the eyewitness to the financial transaction between the applicant and the accused, but in his deposition at exhibit 21, Vijaysinh Somsinh Chauhan has stated that he had seen the accused for the first time before the learned Trial Court. This proves that the financial transaction did not take place as stated by the complainant in Sector 30 in the presence of Vijaysinh Somsinh Chauhan and the financial transaction of Rs.2,00,000/- between Vijaysinh Somsinh Chauhan and Manishkumar Cheljibhai Patel, the elder brother of the accused has also been proved in the cross- examination of Vijaysinh Somsinh Chauhan. The accused has challenged the financial capacity of the applicant and has successfully rebutted the presumption in his evidence. The applicant has himself stated that he has not shown the amount of Rs.15,00,000/- in his Income Tax Returns, and there is no clarity as to how the amount of Rs. 15,00,000/- was paid to the accused in cash by the applicant. The applicant in the beginning has stated that he had given the amount from his own personal savings and had taken some amount from his father who was a pensioner and earning a monthly pension of Rs.25,000/-, but in the cross- examination has stated that he had taken some amount from his father, some amount from his cousin Vijaysinh Somsinh Chauhan, and some amount from his brother-in-law and father-in-law, but has not mentioned the exact amounts that were taken from them. Vijaysinh Somsinh Chauhan has been examined as a witness, but in the examination in chief has not mentioned that he had given any amount to the complainant to give to the accused, and the father of the complainant, brother-in-law of the complainant and the father-in-law of the complainant have not been examined on oath before the learned Trial Court to prove that they had given any amounts to the applicant. As the accused has challenged the financial capacity of the applicant the burden was on the applicant to prove that he had the financial capacity to lend the amount even from borrowings, the applicant ought to have examined the persons from whom the amount was taken, but no such witness has been examined by the applicant to prove his case. The version of the applicant is not believable and the accused has successfully rebutted the presumption by stepping into the witness box and by examining one witness on his behalf. The accused has successfully proved his defence and the learned Trial Court has held that the applicant has been unable to explain his source of income and how the cash of Rs.15,00,000/- was lent to the accused and has not produced any documentary evidence, including his Income Tax Returns on record. The applicant has not been able to prove the financial transaction and his legally enforceable due amount and the learned Trial Court has held that the accused has successfully rebutted the presumption under Section 139 and no offence is made out under Section 138 of the N I Act. 10. The learned Trial Court has appreciated all the evidence produced by both the parties and has concluded that the applicant has not proved the legally enforceable debt and has concluded that from the evidence on record the applicant has successfully rebutted the presumption under Section 139 of the N I Act. The accused had created a reasonable doubt and the applicant has failed to produce reliable and cogent evidence on record about the amount of cheque being the legally recoverable debt from the accused and the applicant has not proved his case beyond reasonable doubt and, in light of the above observation, the learned Trial Court has passed the impugned judgment and order of acquittal, which is just and proper and does not require any interference of this Court. 11. Consequently, the present application seeking leave to present an appeal under Section 378(4) of the Code of Criminal Procedure, 1973 fails and is hereby dismissed. 12. Record and proceedings if any, be sent back to the learned Trial Court forthwith. 13. Since the leave to prefer appeal is rejected, no order is required to be passed in the Criminal Appeal, which is at filing stage and the same stands disposed accordingly.