JUDGMENT : N. UNNI KRISHNAN NAIR, J. 1. Heard Mr. J Roy, learned Senior counsel appearing for the appellant and Mr. A K Bhuyan, learned counsel for the respondent. 2. The present criminal appeal has been instituted by the appellant assailing the judgment dated 05.12.2013 passed by the learned Judicial Magistrate First Class, Guwahati in complaint case, being C.R. No. 2702 C /2009, dismissing the same. 3. The appellant, herein, had instituted a complaint case before the Court of learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati, which was registered as C.R. No. 2702 C /2009 under the provisions of Section 138 of the N.I. Act, inter-alia, praying for conviction of the respondent, herein, under the provisions of of the N.I. Act for dishonour of two cheques issued by the respondent to the appellant, herein. The learned Trial Court upon considering the issues arising in the said complaint case proceeded on conclusion of the trial vide judgment dated 05.12.2013 to acquit the respondent, herein, from the charge framed against him under Section 138 of the NI Act. Accordingly, the complaint case filed by the appellant, herein, came to be dismissed. Being aggrieved, the appellant, herein, has instituted the present proceedings. 4. Mr. Roy, learned counsel for the appellant, at the outset, by referring to Ext.7 has submitted that the same would go to establish that the appellant, herein, had from time to time given to the respondent, herein, an amount of Rs.9,81,500/- for being allotted a flat, which was to be constructed by the respondent, herein. Mr. Roy, learned counsel for the appellant further contends that against the said amount, the respondent, herein, had issued to the appellant three cheques, bearing cheque No. 628467 dated 18.05.2009 for an amount of Rs.3,00,000/-, cheque No. 628468 dated 20.05.2009 for an amount of Rs.3,00,000/- and cheque No. 628469 dated 22.05.2009 for an amount of Rs.3,45,000/-. Mr. Roy, further submits that the balance amount was undertaken by the respondent to be paid by cash. Mr. Roy, learned counsel for the appellant submits that after issuance of the cheque No. 628467 and cheque No. 628468, the respondent had paid in cash an amount of Rs.65,000/- to the appellant on 22.05.2009 and had further deposited an amount of Rs.25,000/- in his account on 25.05.2009. Mr. Mr. Roy, learned counsel for the appellant submits that after issuance of the cheque No. 628467 and cheque No. 628468, the respondent had paid in cash an amount of Rs.65,000/- to the appellant on 22.05.2009 and had further deposited an amount of Rs.25,000/- in his account on 25.05.2009. Mr. Roy further submits that a further cheque for an amount of Rs.2,10,000/-, being cheque No. 628467 dated 27.05.2009 was also issued by the respondent to the appellant on 27.05.2009. He submits that in total, out of the amount due to the appellant, the respondent had by way of cash as well as vide cheque dated 27.05.2009 paid an amount of Rs.3,00,000/-. Mr. Roy, learned counsel for the appellant further submits that the appellant had returned the cheque No. 628469 dated 22.05.2009 for an amount of Rs.3,45,000/- to the respondent. Mr. Roy submits that accordingly a balance of Rs.6,81,500/- was due to the appellant. Mr. Roy submits that the appellant had deposited the two cheques, i.e., cheque No. 628467 and cheque No. 628468 for clearance in his account. However, the same was returned unpaid on the ground of insufficiency of fund. Mr. Roy, submits that two demand notices dated 11.06.2009 and 12.06.2009 were issued to the respondent by the appellant and the same were received by the respondent, herein. He submits that the counsel for the respondent had responded to the said two notices and had taken a plea that the amounts due against the cheque in question were paid in part by the respondent and demanded for return of the cheques in question. Mr. Roy, learned counsel for the appellant submits that in the above backdrop, the appellant had instituted the complaint case before the Court of learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati. He submits that the matter was, thereafter, assigned to the Court of learned Judicial Magistrate First Class at Guwahati for disposal. Mr. Roy, submits that the appellant had deposed in the trial as PW1 and during his cross-examination by the respondent, the appellant had exhibited a document containing the details of the payment made by the appellant to the respondent, which was signed by the respondent and the said document was exhibited as Ext.7. Mr. Mr. Roy, submits that the appellant had deposed in the trial as PW1 and during his cross-examination by the respondent, the appellant had exhibited a document containing the details of the payment made by the appellant to the respondent, which was signed by the respondent and the said document was exhibited as Ext.7. Mr. Roy further submits that the signature of the respondent, which was marked as Ext.7(A) was disputed by the respondent, herein and accordingly, on the prayer made by the respondent, the same was sent for forensic examination. He submits that although, the figures as incorporated in Ext.7 was also demanded by the appellant, herein, to be sent for forensic examination, the learned Trial Court had refused to accept the prayer of the appellant, herein, as only the signature of the respondent, which was exhibited as Ext.7(A) being disputed, the same was only forwarded to the Forensic Science Laboratory for examination. Mr. Roy, learned counsel for the appellant, by referring to the opinion of the handwriting expert submits that the questioned signature, which was exhibited as Ext.7(A) was opined to be that of the respondent, herein. Mr. Roy, submits that the respondent had admitted to his signature as finding place in the two cheques in question and accordingly, he submits that the cheques would have to be held to have been so issued against a legally enforceable debt. Mr. Roy, submits that Ext.7 having demonstrated the amounts received from the appellant by the respondent and the same totaling to an amount of Rs.9,81,500/-, the part payment of Rs.3,00,000/- as made by the respondent cannot be said to be in full satisfaction of the legally enforceable dues receivable by the appellant, herein. Mr. Roy submits that the two cheques, being Ext.1 & Ext.2 issued by the respondent for a total amount of Rs.6,00,000/- is in part payment of the balance amount of Rs.6,81,500/-receivable by the appellant, herein, from the respondent. Mr. Roy, learned counsel for the appellant, by referring to the impugned judgment has submitted that the learned Trial Court had drawn conclusion in favour of the appellant, herein, with regard to the fact that the cheques in question were dishonoured due to insufficient fund in the account of the respondent, herein. The learned Trial Court had also held that a valid demand notice was served upon the respondent by the appellant, herein. The learned Trial Court had also held that a valid demand notice was served upon the respondent by the appellant, herein. He further submits that the learned Trial Court had also held that the respondent, herein, had failed to pay the cheque amount within the stipulated period to the appellant. Mr. Roy, submits that the learned Trial Court refused to accept the contention of the appellant, herein, that the appellant was entitled to receive an amount of Rs.9,81,500/- only from the respondent, herein and accordingly, holding that the part payments having been made after issuance of the two cheques, which were exhibited as Ext.1 & Ext.2, the appellant was not entitled to receive any further amount and accordingly, proceeded to dismiss the complaint case, acquitting the respondent from the charge under Section 138 of the NI Act. Mr. Roy, submits that there were three cheques issued and the part payment being only in connection with the amount so involved in Cheque No. 628469 dated 22.05.2009 for an amount of Rs.3,45,000/-, the part payments in the facts and circumstances of the case involved, cannot be said to have been so made in respect of the amounts involved with regard to the cheque No. 628467 dated 18.05.2009 and cheque No. 628468 dated 20.05.2009, which were exhibited as Ext. 1 & Ext. 2 during the trial. Accordingly, Mr. Roy, learned counsel for the appellant submits that the dues receivable by the appellant from the respondent being admittedly for an amount of Rs.9,81,500/- and the respondent having only paid an amount of Rs.3,00,000/- till the filing of the complaint case, the balance being receivable by the appellant and the said amount being covered by the two cheques in question, a legally enforceable debt to the appellant from the respondent being evident, the conclusions reached by the learned Trial Court with regard to Point No. A would mandate an interference by this Court. He submits that the legally receivable amount by the appellant being established, the judgment dated 05.12.2013 would require an interference and this Court in the facts and circumstances of this case would be pleased to convict the respondent along with a direction for payment of the cheque amount involved in terms of the provisions of Section 138 of the NI Act. 5. Per contra, Mr. 5. Per contra, Mr. A K Bhuyan, learned counsel for the respondent submits that the appellant had deposed during the trial as PW1. He submits that from the cross-examination of the appellant, it would be clear that on 27.05.2009, he had received Rs.3,00,000/- for which he had not issued any money receipt. He further submits that the appellant had also submitted that he had issued a money receipt for an amount of Rs.65,000/-, which was so received by him in lieu of cheque No. 628467 dated 18.05.2009 out of Rs.3,00,000/- involved. He further submits that the appellant had admitted that the respondent had deposited an amount of Rs.25,000/- in his account on 25.05.2009 and further that an amount of Rs.2,10,000/- was so deposited by way of cheque in his account on 27.05.2009. He further submits that after filing of the case, the respondent had deposited a further amount of Rs.50,050/- in the account of the appellant. Mr. Bhuyan, learned counsel for the respondent submits that a close perusal of the cross-examination of the respondent would reveal that the appellant had in total received Rs.6,00,000/- from the respondent before issuance of the notices in question. Accordingly, Mr. Bhuyan, submits that the part payment of the cheques having already been made and there being no endorsement to that effect in the cheque when it was presented by the appellant for clearance in terms of the provisions of Section 56 of the Act by the appellant, the dues receivable by the appellant not being the amount as reflected in the two cheques in question, the proceedings under Section 138 of the NI Act would not be maintainable against the respondent, herein. Mr. Bhuyan, further submits that although it is a settled position of law that the respondent having accepted his signature and the writings in the cheuqe in question, a presumption against the respondent is permissible to be drawn under the provisions of Section 139 of the NI Act, however, such presumption being a rebuttable one, the respondent from the cross-examination of the appellant, herein, who had deposed as PW1 during the trial, having brought on record the factum of part payment of the amount involved and the same having demonstrated payment of Rs.6,00,000/-, a probable defence having been raised by the respondent in the matter, the impugned judgment of the learned Trial Court would not mandate any interference. In support of his submission, Mr. Bhuyan, learned counsel for the respondent has relied upon the decision of the Hon’ble Supreme Court in the case of Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr., reported in (2023) 1 SCC 578 . 6. I have heard the learned counsels for the parties and also perused the materials available on record. 7. The learned Trial Court for the purpose of adjudication of the issues arising in the complaint case as instituted by the appellant, herein, before it had framed the following points for determination. “4. Points for determination in this case are: A. Whether accused person issued ext.1 cheque no. 628467 dated 18/5/09 and ext.2 cheque no. 628468 dated 20/5/09 for Rs.3,00,000/- each in the favour of complainant in discharge of debt or liability? B. Whether the ext.1 and 2 cheques were dishonoured due to funds insufficient in the account of accused? C. Whether valid demand notice was served upon the accused? D. Whether accused person failed to pay the cheque amounts within stipulated period to the complainant?” 8. Point No. B, C & D as framed by the learned Trial Court were answered in favour of the appellant, herein. The conclusions drawn by the learned Trial Court in the matter would go to demonstrate that the cheques in question were dishonoured due to insufficient fund in the account of the respondent and thereafter, a valid demand notice thereon was served upon the accused and the accused had failed to pay the cheque amounts within the stipulated period of time. 9. The learned Trial Court in the impugned judgment had noticed that the respondent, herein, had not admitted to the claim of the appellant of being paid an amount of Rs.9,81,500/- and had projected that only Rs.6,00,000/- was taken by him which was repaid. It was further projected by the respondent before the learned Trial Court that an amount of Rs.50,050/- was also paid as interest. The learned Trial Court further noticed that from the cheques in question, a presumption in favour of the appellant under Section 118 (b) and Section 139 of the NI Act is permissible to be taken, but the same is rebuttable one. However, the burden to rebut such presumption is on the respondent, herein. The learned Trial Court further noticed that from the cheques in question, a presumption in favour of the appellant under Section 118 (b) and Section 139 of the NI Act is permissible to be taken, but the same is rebuttable one. However, the burden to rebut such presumption is on the respondent, herein. The learned Trial Court, thereafter, examined the evidences coming on record and by noticing the evidence adduced by the appellant as PW1 during his cross-examination noticed that the appellant had received Rs.3,00,000/- for which no money receipt was issued and further, an amount of Rs.65,000/- for which a money receipt being Ext.A was issued by the appellant. The learned Trial Court further noticed that the respondent had deposited Rs.25,000/- in the account of the appellant and Rs.2,10,000/- was paid by way of a cheque, totaling further Rs.3,00,000/-. Accordingly, the learned Trial Court drew a conclusion that the admitted payments made by the respondent to the appellant amounted to Rs.6,00,000/- and the payments were so made after the date of issuance of the cheques in question and before the presentation of the same in the bank by the appellant for clearance. 10. With regard to the claim of the appellant that he had paid an amount of Rs.9,81,500/- to the respondent over the period of time, the learned Trial Court had noticed that such a claim is based upon the execution of Ext.7. After noticing the report of the handwriting expert, the learned Trial Court drew the following conclusions:- “In spite of the admitted position of payment of Rs.6,00,000/- only by accused to the complainant before dishonour of cheques the key point of difference between them is that accused has version that he took only rupees six lakhs but complainant has story that accused took Rs.9,81,500/- only in total on various dates. In support of his version complainant exhibited one receipt as ext.7. This document from its bare reading gives calculation of Rs.9,81,500/- only and complainant says that accused had issued it admitted his liability. Accused has denied the execution of ext.7 and denied his signature there upon. On this matter ext.7 was sent for expert opinion and as per the version of expert ext. 7 bears handwriting of accused. Then defence cross examined the expert length wise questioning competency of the expert concerned. Accused has denied the execution of ext.7 and denied his signature there upon. On this matter ext.7 was sent for expert opinion and as per the version of expert ext. 7 bears handwriting of accused. Then defence cross examined the expert length wise questioning competency of the expert concerned. As it is legal position that expert gives opinion only and it cannot be the conclusive proof of the matter per se so before going in to the evidence of expert I see evidence of complainant as pw1 again. Pw1 irrespective to his complaint petition made his story clear in his evidence on affidavit that accused took Rs.9.81,500/- only in total on various dates and gave money receipts for that, but in his cross examination pw1 admitted that he has not produced those money receipts. In his cross examination pw1 admitted the document placed by defence which is ext.A. This document shows that accused paid Rs.65,000/- only to the complainant on 22/5/09 and adjusted the same amount against ext.1 cheque no.628467. On this point Pw1 in his evidence in chief stated that said Rs.65,000/- only was paid in respect of another cheque no. 628469 and in ext. A cheque no ought to be written as 628469. On this point as per the provisions of chapter VI of Indian Evidence Act, the very contents of the ext.A are important, this document is not ambiguous and does not disclose any mistake of fact hence its contents are to be proved by document itself. Further on this point pw1 is silent as why in ext. A cheque no is written as 628467 and not 628469. So I have to consider this admitted document with its contents as it is and it clears that this payment of Rs.65,000/- only was in respect of ext. I cheque. Now I go through the most important and disputed document which is ext.7. It is the only document from complainant side upon which complainant stands to show that liability of accused was of Rs.9,81,500/- only. This document speaks for its own, in the same dates are written and amount of money are shown in respect of those dates. After calculation of all amounts shown in ext.7 it reaches at Rs.9.81.500/- only. As discussed earlier accused had denied execution of ext.7 and experts version says that signature is in the hand writing of accused. This document speaks for its own, in the same dates are written and amount of money are shown in respect of those dates. After calculation of all amounts shown in ext.7 it reaches at Rs.9.81.500/- only. As discussed earlier accused had denied execution of ext.7 and experts version says that signature is in the hand writing of accused. But this document is on plane paper and does not bear any fact as in whose favour it was so executed. The contents of ext.7 don't make it as any promissory note nor receipt as it states nothing except the calculation of money and respective dates. It even does not contains name of complainant who alleges it in his favour. So I find that ext.7 if taken as it is then also it is a vague document without any specific liability upon any one against any one. So complainant cannot prove the fact of giving Rs.9.81,500/- only by this ext.7. It is very important to note that if complainant stands on his version then also it is admitted that accused had paid Rs.6,00,000/- only to complainant before presentation and dishonour of cheques, ext. A clears that payment was in respect of ext.1 cheque. So in this way also if Rs.6,00,000/- only is deducted from alleged Rs.9,81,500/- only then also liability of accused cant remain up to the amounts given in ext.1 and 2 cheques. So at this stage of my discussion I clearly find that complainant has not even shown the alleged liability upon the accused and accused on the strength of Ext. A and admissions made by complainant about payment by accused has successfully rebut the presumption available u/s 118(b) and 139 of N.I. Act and then complainant has no sufficient evidence to prove the alleged liability of accused. Hence complainant has failed to prove this important point and it is decided in negative.” 11. The said conclusions drawn by the learned Trial Court has been examined by this Court in the light of the evidences coming on record. The cross-examination of the appellant, herein, reveals payment of an amount of Rs.3,00,000/- on 27.05.2009 for which he had not issued any notice. The appellant further admits of having received an amount of Rs.65,000/- for which he had issued a receipt on 22.05.2009. The cross-examination of the appellant, herein, reveals payment of an amount of Rs.3,00,000/- on 27.05.2009 for which he had not issued any notice. The appellant further admits of having received an amount of Rs.65,000/- for which he had issued a receipt on 22.05.2009. The said amount of Rs.65,000/- when accounted along with the further deposited amount of Rs.25,000/- in his account by the respondent and also the deposit of an amount of Rs.2,10,000/- on 27.05.2009 by way of a cheque in the account of the appellant, herein, it is found that a further amount of Rs.3,00,000/- was received by the appellant. Accordingly, the amount of Rs.3,00,000/- received on 27.05.2009 and the further amount of Rs.3,00,000/- as paid by the respondent to the appellant, the appellant is seen to have been received an amount of Rs.6,00,000/- before filing of the case. The relevant extracts of the cross-examination of the appellant, herein, being relevant is extracted hereinbelow:- “It is fact that on 27/05/09 I received an amount of Rs.3lakhs and I did not issue any money receipt to that effect. …….. …….. Ext A was issued on 22/05/2009. In my Ext A I have written that "Received back the lend amount of Rs.65000 in lieu of cheque no.628467 date 18/05/2009 out of 3 lakhs". It is fact that accused deposited Rs.25000 in my account on 25/05/2009. It is a fact that I received an amount of Rs.2,10,000 on 27/05/2009 by way of cheque. An amount of Rs. 50,050 was deposited by the accused in my account after filing of this case.” 12. A perusal of the said evidence of the appellant during his cross-examination by the respondent would lead to a presumption being permissible to be drawn of the appellant having received Rs.6,00,000/- from the respondent. Further, the Ext. A receipt issued by the respondent, herein, clearly mentioned that the same was so issued in lieu of cheque No. 628467 (Ext.1) dated 18.05.2009, out of the amount of Rs.3,00,000/-. Although, the appellant had tried to project that the said receipt was in fact issued against cheque No. 628469 dated 22.05.2009, the said contention cannot be accepted, inasmuch as, the cheque No. 628469 was so issued by the respondent, herein, for an amount of Rs.3,45,000/- and not for an amount of Rs.3,00,000/-. Although, the appellant had tried to project that the said receipt was in fact issued against cheque No. 628469 dated 22.05.2009, the said contention cannot be accepted, inasmuch as, the cheque No. 628469 was so issued by the respondent, herein, for an amount of Rs.3,45,000/- and not for an amount of Rs.3,00,000/-. There is no clarification on the part of the appellant with regard to the amount of Rs.3,00,000/- as finding mentioned in Ext.A receipt dated 22.05.2009 issued by him. Further, the said contention would also not be acceptable, inasmuch as, the cheque No. 628469 for an amount of Rs.3,45,000/- was issued to the appellant on 22.05.2009 and the Ext.A receipt was also issued by the respondent on the same date. Accordingly, the said part payment has to be construed to have been so made with regard to the cheque No. 628467 dated 18.05.2009. 13 . In view of the materials coming on record, this Court is of the considered view that the learned Trial Court had not erred in appreciating the evidences and answered Point No. A against the appellant, herein. Part payments having been made against the cheque amount before the cheque was presented for encashment, the cheque on being placed for encashment cannot be held to have been so placed for a legally enforceable debt. In view of the part payments made, there has been a material change in the circumstances such that the sum in the cheques does not represent the legally enforceable debt at the time of encashment and accordingly, an offence under Section 138 of the NI Act cannot be said to have been made out against the respondent, herein. 14. Support in this connection is drawn from the conclusions drawn by the Hon’ble Supreme Court in its decision in the case of Dashrathbhai Trikambhai Patel (supra). The Hon’ble Supreme Court had drawn the following conclusions:- “30. 14. Support in this connection is drawn from the conclusions drawn by the Hon’ble Supreme Court in its decision in the case of Dashrathbhai Trikambhai Patel (supra). The Hon’ble Supreme Court had drawn the following conclusions:- “30. In view of the discussion above, we summarise our findings below: (i) For the commission of an offence under Section 138 , the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation; (ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque; (iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted; (iv) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the 'legally enforceable debt on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and (v) The notice demanding the payment of the 'said amount of money has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of . Since in this case, the first respondent has not committed an offence under , the validity of the form of the notice need not be decided. “ 15 . Applying the decision of the Hon’ble Supreme Court to the issues arising in the present proceedings, this Court is of the considered view that the learned Trial Court had not committed any error in drawing its conclusion in the matter. “ 15 . Applying the decision of the Hon’ble Supreme Court to the issues arising in the present proceedings, this Court is of the considered view that the learned Trial Court had not committed any error in drawing its conclusion in the matter. The amount involved in the cheques having being demonstrated by the respondent to have been paid to the appellant before the same was presented for encashment basing on the evidences adduced in the matter by the appellant, herein, this Court is of the considered view that a probable defence was raised by the appellant in the matter and the presumption permissible to be drawn under Section 139 of the NI Act was successfully rebutted by him in the matter. 16. For the above forgoing discussion, this Court is of the considered view that the impugned judgment dated 05.12.2013 passed by the learned Judicial Magistrate First Class, Guwahati in C.R. No. 2702 C /2009 would not mandate any interference. Accordingly, the present appeal stands dismissed. However, there would be no order as to cost. 17. Registry to send down the Trial Courts Records forthwith.