JUDGMENT:- Heard learned counsel for the parties. Admit. Taken up for final disposal forthwith by consent of parties.

2. Appellant initiated prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act against the respondent. By impugned judgment and order dated 23.9.2009 passed by the Judicial Magistrate, First Class (Court No.2), Amravati in Summary Case No.5716 of 2006, respondent-accused was acquitted. Therefore. this appeal.

3. According to the complainant, he is a Dealer in Tractors and Agricultural Equipments, such as, plough, cultivator panji etc. Accused is an agriculturist. There was business dealing between the two. On 22.11.2005 the complainant had sold 9 tine cultivator; 5 tine Panji and plough with two furrow respectively for Rs.14,900/-, Rs.13,500/ - and Rs.18,500/- (in all priced at Rs.46,900/-) to the accused on credit. In order to make payment of the bill, accused issued cheque no.933950 dated 22.11.2005 for Rs.46,900/drawn on the Amravati District Central Cooperative Bank Limited, Branch at Anjangaon Surji in the favour of complainant. Complainant presented the said cheque for encashment through his bankers State Bank of India, Amravati Branch. However, the cheque was returned unpaid on account of insufficiency of funds. Complainant served the accused with legal notice dated 8.9.2006 and demanded payment of RsA6,900/-. Even though the accused received said notice on 11.9.2006, but instead of complying with the demand made therein, he issued false reply and that necessitated filing of complaint by appellant against accused.

4. It was the defence of accused that there was no such dealing, but he had agreed to buy a tractor and equipments for a total sum of Rs.4,40,l06/-. Five blank cheques were given only as a security for transaction between the parties. Complainant had already drawn sums of Rs.50,000/- plus Rs.50,000/- by using two cheques and Rs.I0, 106/- were paid in cash to him by the accused and he had mortgaged his land to raise loan of Rs.3,30,000/-.

Therefore, the cheque was not supported by any consideration. It was only a blank cheque.

5. It is contended by learned Advocate for the appellant that defence of the accused that blank cheque was issued only as a security, is no longer available to him in the light of decisions in Hiten P. Dalal Vs. Bratindranath Banerjee reported in2001 AIR SCW 3861: [2001 ALL MR (Cri) 1497 (S.C.)] and K. Bhaskaran Vs. Sankaran reported in 2000(1) Mh. L.J. 193: [1999 ALL MR (Cri) 1845 (S.C.) : 1999(4) ALL MR 452 (S.C.)]. Learned Advocate submitted that when the cheque in question was admittedly signed by the accused, statutory presumption operated against him as enacted in Section 118 of the Negotiable Instruments Act that the cheque was made or drawn for consideration on the date on which the cheques bears the date. There is further presumption that the holder of the cheque received the cheque for the discharge of any debt or any liability. Reference may be made to decision by the Constitution Bench in Dhanvantrai Balwantrai Desai Vs. State of Maharashtra reported in AIR 1964 SC 575 where the Apex Court reiterated the principle enunciated in State of Madras Vs. Vaidyanath Iyer reported in AIR 1958 SC 61 and clarified that the distinction between the two kinds of presumptions lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of discretionary presumption, the presumption if drawn, may be rebutted by an explanation which "might reasonably be true and which is consistent with innocence" of the accused. On the other hand, in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable". It must further be shown that the exp

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