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11. Shri. Patel has invited this Court"s attention to document at exhibit-37 to 45 and exhibit 53 to 56 Blank Cheques and original blank discount vouchers which were returned by the complainant and his Firm to the accused on executing the Settlement Agreement dated 15/03/2003 at exhibit 46, and submitted that these documents are capable of showing that the presumption raised against the accused was fully rebutted.

12. Shri. Patel has submitted that the case of the complainant was inherently improbable as it could be seen from the documents at exhibit-46 that the complainant and accused were having a kind of dispute which was required to be settled by and between the parties with the help of mediators. The date of settlement is immediately prior to the date of issuance of the cheque. When the account of past was required to be settled with the help of mediators and when both the sides were required to give up part of their claim, it would certainly be very improbable that right thereafter an another loan of quite a sizable amount of Rs. 11,50,000 would be advanced by the complainant to the respondents. As against this, the evidence in form of Settlement Agreement at Exhibit 46, the returned blank cheques of the accused at exhibit 37 to 45, the blank vouchers signed by the accused at Exhibit 53 to 56 go to show that the defense of the accused was quite probable. The impugned order of acquittal therefore deserves to be sustained.

23. The accused has during the evidence of the complainant brought on record the signed blank cheques at exhibit 37 to 45. The complainant has admitted in unequivocal terms that these signed blank cheques of accused were lying with the complainant as security in respect of old transactions. They were returned to the accused, as the disputes in respect of old transaction had been resolved with the help of mediators. The accused has also brought on record during the evidence of the complainant the blank vouchers bearing revenue stamp and stamp of Jay Marketing, the Firm of the accused and its partner"s signature lying in the custody of the complainant as security for old transaction which were returned to the accused after the settlement agreement at exhibit 46. These vouchers were duly proved and exhibited at exhibit 53 to 56.

27. The law of evidence on statutory presumption has by now crystallized into concrete proposition that presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning that the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law or evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as proof. The accused have, during the testimony of the complainant, produced evidences in form of signed blank cheques and vouchers that were lying with the complainant as security for old transactions and which were returned by the complainant to the accused on settlement of accounts. The complainant"s failure in establishing the fact of advancing sizable amount of Rs. 11,50,000=00 or 11,45,000=00 on 25/04/2003 to the accused coupled with his unequivocal admission of the returning of signed blank cheques and vouchers lying with them a security to the accused on settlement of old disputes go to support the defense version that there exist no liability to the complainant and or his firm and the complainant have misused one of the signed blank cheques lying with them for falsely implicating them as they had to settle the disputes wherein both the parties had to give up part of their respective claim against each other. Thus the accused have in fact successfully discharged the initial burden of proving that cheque at exhibit 26 had not been issued by them for any legally enforceable debt or liability towards the complainant. In case of K.N. Beena (supra) there was merely denial by the accused and that was treated to be sufficient by the High Court, which was found to be insufficient proof of rebuttal by the Apex Court. There cannot be any proposition of law that the accused has to lead evidence by examining himself in witness box for rebutting the presumption under Section 139 of the N.I. Act. The accused in the present case in fact has produced material on the record, which has been duly proved and exhibited showing that they have discharged the initial burden.

30. It also deserve to be noted that when documents in form of signed blank cheques and vouchers at exhibit No. 37 to 45 and 53 to 56 respectively brought on record by the accused during the testimony of the complainant and when the complainant has unequivocally admitted that it was the practice of keeping blank cheques and vouchers of the accused by way of security the accused did discharge their initial burden of proving under Section 139 of the N.I. Act that the cheque at exhibit 26 was not issued against any legally enforceable debt or liability. The burden thereafter had shifted upon the complainant to prove that they had in fact advanced a sum of Rs. 11,50,000=00 or 11,45,000=00 to the accused on 25/04/2003 and the accused issued the cheque at exhibit 26 dated 5/05/2003 against the said advance only and the accused failed in making payment of the said amount within stipulated time. The Apex Court has in case of M.S. Narayan Menon @ Mani v. State of Kerala and Anr. held that once the accused under Section 139 of N.I. Act shows that the cheque in question had in fact not been issued for any legally enforceable liability or debt then the burden shifts on to the complainant to prove the contrary. Thus in view of this the acquittal of the accused impugned in this appeal cannot be said to be so perverse as to result into miscarriage of justice warranting any interference under Section 378 of the Code.