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(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."

7. Clause 3.1(iii) of the agreement may also be noted :-

8. Reference may now be made to the decision of this HC-NIC Page 7 of 13 Created On Tue Aug 15 13:35:16 IST 2017 R/CR.MA/14352/2015 ORDER Court in Indus Airways Private Limited versus Magnum Aviation Private Limited, (2014)12 SCC 539, on which strong reliance has been placed by learned counsel for the appellant. The question therein was whether post- dated cheque issued by way of advance payment for a purchase order could be considered for discharge of legally enforceable debt. The cheque was issued by way of advance payment for the purchase order but the purchase order was cancelled and payment of the cheque was stopped. This Court held that while the purchaser may be liable for breach of the contract, when a contract provides that the purchaser has to pay in advance and cheque towards advance payment is dishonoured, it will not give rise to criminal liability under Section 138 of the Act. Issuance of cheque towards advance payment could not be considered as discharge of any subsisting liability. View to this effect of the Andhra Pradesh High Court in Swastik Coaters (P) Ltd. versus Deepak Bros., 1997 CriLJ 1942, Madras High Court in Balaji Seafoods Exports (India) Ltd. versus Mac Industries Ltd., (1999)1 CTC 6, Gujarat High Court in Shanku Concretes (P) Ltd. versus State of Gujarat, 2000 CriLJ 1988 and Kerala High Court in Supply House versus Ullas, 2006 CriLJ 4330 was held to be correct view as against the view of Delhi High Court in Magnum Aviation (P) Ltd. versus State, (2010)172 DLT 91 and Mojj Engg. Systems Ltd. versus A.B. Sugars Ltd., (2008)154 DLT 579 which was disapproved.

12. The crucial question to determine applicability of Section 138 of the Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court.

17. In Rangappa versus Sri Mohan[9], this Court held that once issuance of a cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant. However, mere statement of the accused may not be sufficient to rebut the said presumption. A post dated cheque is a well recognized mode of payment."