17 October 2019
Supreme Court


Case number: Crl.A. No.-001545-001545 / 2019
Diary number: 12605 / 2019
Advocates: B. S. BANTHIA Vs












1. The appellant is aggrieved against an order passed by the High

Court of Himachal Pradesh, Shimla on 17.12.2018, whereby, the

order  of  dismissal  of  complaint  under  Section  138  of  the

Negotiable Instruments Act, 18811 by the learned Trial Court was

not interfered with.

2. None has put appearance on behalf of respondent No. 1, despite

service.  Therefore,  on  16.09.2019,  this  Court  requested Ms.  Liz

Mathew,  Advocate  to  assist  the  Court  on  behalf  of  respondent


1 for short the “Act”



3. The  appellant  owns  apple  orchard  in  District  Kullu,  Himachal

Pradesh.  The appellant also used to supply apple cartons,  trays

and other packing materials to other apple growers on cash and

credit  basis.  He also owns commercial  ropeway which connects

various other apple orchards with the roadhead as a facility to the

growers to carry their produce from the orchards to the market.

4. In  the  year  2011,  respondent  No.  1  purchased  apple  crops  of

various  growers  which was carried  out  through ropeway to  the

roadhead for  further  transportation.   The packing material  was

procured  by  the  respondent  on  credit  basis  from the appellant

through his authorised agent Prem Chand son of Kumat Ram. In

the month of September 2011, the accounts were finally settled

between the appellant and the authorised agent of respondent No.

1 and a sum of Rs.5,38,856/- was found recoverable. A cheque No.

942816 dated 2.10.2011 was issued for the said amount, but the

said  cheque  was  returned  by  the  bank  on  11.10.2011  on

presentation with the endorsement “insufficient funds”.   

5. The  appellant  thereafter  served  a  legal  notice  on  27.10.2011

under registered cover sent to the official and home addresses of

respondent  No.  1.  But,  in  spite  of  receipt  of  the  notice  of

27.10.2011,  no  payment  was  made  which  led  to  filing  of  a

complaint by the appellant.

6. The  appellant  in  his  complaint  stated  that  total  amount  of



Rs.7,86,300/- was found payable on account of bags, gunny bags

and  packing  materials  and  after  adjusting  the  payment  of  Rs.

2,47,444/-, an amount of Rs. 5,38,856/- was found to be payable

to the appellant. The appellant has asserted that the said cheque

No. 942816 dated 2.10.2011 was issued by the respondent.  

7. In  support  of  the  complaint,  apart  from  producing  CW1  Dhiraj

Kumar who produced the bank record of dishonour of cheque, the

appellant  examined  himself  as  CW2  and  also  produced  Prem

Chand son of  Kumat Ram, the agent of respondent as CW3. The

respondent  did  not  appear  in  witness  box  but  examined  Head

Constable Ranjit Singh DW1.   

8. Learned Trial Court dismissed the complaint for the reason that

cheque amount was more than the amount alleged on the due

date when cheque was presented.  Therefore, the cheque cannot

be said to be drawn towards discharge of whole or in part of any


 9. The  appellant  in  his  affidavit  reiterated  his  assertions  as  were

given in the complaint. In the cross-examination conducted by the

respondent, the appellant stated that cheque in Exh.CW1/B was

filled up by the respondent in October 2011 and that cheque was

given  by  the  respondent  himself  to  him.  Three  persons,  he

himself,  accused and the agent of the respondent sat together.

He deposed that he was given up a filled-up cheque. He denied



the  suggestion  that  the  accused  did  not  issue  the  cheque

Exh.CW1/B.  He  also  denied  the  suggestion  that  Prem  Chand

misused the cheque of the accused because he has stolen the

signed cheque book of the accused and that he has filled up a

blank cheque.  

10. CW3  Prem  Chand  deposed  that  the  respondent  purchased,  on

contract, apple in their area from apple growers including from the

appellant  for  further  sending  them to  Shimla,  Chandigarh  and

Delhi.  He deposed that appellant  had to recover an amount of

Rs.7,86,300/-  and after adjustment of  Rs.2,47,444/-  the balance

amount was payable by the respondent for which the settlement

was  arrived  at  in  his  presence  when  cheque  No.  942816  was

issued for a sum of Rs.5,38,856/- dated 2.10.2011.   

11. In  the cross-examination,  he deposed that  he used to  keep an

account of all the packing materials. He was suggested that the

accused has kept cheque with him and he used to give to the

growers.  However,  he  categorically  deposed  that  cheque

Exh.CW1/B was given in his presence by the accused in Kuthwa.

The account was settled prior to giving of cheque. He denied the

suggestion that he lodged a report in police about missing cheque

book in the year 2011.    He   deposed that the respondent has

given cheque book by signing them.  He denied the suggestion

that the cheque in question was filled up as he colluded with the

appellant. The respondent in his statement under Section 313 of



the Code of Criminal Procedure2 denied the prosecution case. The

relevant question No. 9 and the answer given by the respondent

are as under:  

“Q.9 Why the present case has been made out against you


Ans. This is a false case. My cheque has been misused.”

12. DW1-Ranjit,  Head  Constable  examined  by  the  accused,  has

produced an entry dated 09.09.2011 regarding loss of his cheque

book containing cheque Nos. 942801-942820.  

13. The learned Trial Court returned a finding that mere production of

entry Exh. DW1/A is not sufficient to prove that he has not issued

the  said  cheque  as  such  report  could  have  been  made  with

intention to create false evidence of the loss of cheque book.  The

court found that in fact if the cheque has been lost, the accused

had  several  opportunities  to  lodge  FIR  qua  the  misuse  of  said

cheque as he has signed acknowledgement of notice Exh.CW1/G.

The learned Trial Court recorded the following findings:

 “….Thus, it stands proved beyond reasonable doubt that the cheque Ext. CW1/B was issued by the accused in favour of the  complainant.  Further,  the  dishonor  of  the  cheque has also been proved through return memo Ext. CW1/C.  Further the legal demand notice was also issued within a period of 30 days from the date of dishnour.  Thereafter, the present complaint has been filled within the period of limitation.”

14. Still further, the learned Trial Court held the presumption that the

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amount  of  cheque  is  legally  enforceable  debt,  has  not  been

rebutted when the following finding was returned:  

“….Neither  any  meaningful  cross-examination  of  the complainant  has been done on this point of  his financial capacity.  Accordingly,  the  aforesaid  presumption  has  not been  rebutted  by  the  accused  by  proving  that  the complainant did not have the requisite financial  capacity. Accordingly, the said defence is rejected.”

15. However,  the  learned  Trial  Court  found  contradiction  in  the

number of cartons in the complaint as well as in the statement of

the appellant. It was found that the cheque amount is more than

the  amount  allegedly  due  on  the  date  when  cheque  was

presented,  therefore,  the  complaint  was dismissed.  It  held  that

there  are  three  different  versions  as  to  the  number  of  apple

cartons, therefore, the alleged amount would have been less than

the amount claimed by the complainant.  

16. In an appeal, the High Court relied upon judgments reported as

Hiten P. Dalal v. Bratindranath Banerjee3, Kumar Exports v.

Sharma Carpets4  and  Rangappa v. Sri Mohan5 to hold  that

the cheque shall be presumed to be for consideration unless and

until, the Court forms a belief that the consideration does not exist

or considers the non-existence of consideration was so probable

that a prudent man would under no circumstances of the case, act

upon  the  plea  that  the  consideration  does  not  exist.  The  High

3 (2001) 6 SCC 16 4 (2009) 2 SCC 513 5 (2010) 11 441



Court held as under:  

“21. Now, adverting to the facts of the case, it would be noticed that respondent No. had raised various defences, but, the same were turned down by the learned Magistrate. However, it was only on the basis of the contradictions that too  in  the  evidence  led  by  the  appellant  himself  that respondent No. 1 was ordered to be acquitted.”  

17. The  High  Court  again  referred  to  the  contradictions  regarding

empty apple cartons  and the  rate  per  carton,  to  hold  that  the

appellant  has  failed  to  prove  guilt  of  the  respondent  beyond

reasonable doubt.   

18. We find that the approach of the learned Trial Court and that of the

High Court is perverse; irrational as well as suffers from material

illegality and irregularity, which cannot be sustained in complaint

filed under Section 138 of the Act.  

19. A negotiable instrument including a cheque carries presumption of

consideration in terms of Section 118(a) and under Section 139 of

the Act. Sections 118(a) and 139 read as under:  

“118. Presumptions as to negotiable instruments.-    Until  the contrary is proved, the following presumptions shall be  made:--

(a) of  consideration —that  every  negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted,  indorsed,  negotiated  or  transferred, was accepted, indorsed, negotiated or transferred for consideration;….

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139.  Presumption  in  favour  of  holder.—It  shall  be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in



section 138 for the discharge, in whole or in part, of any debt or other liability.”

20. The Trial Court and the High Court proceeded as if, the appellant is

to prove a debt before civil court wherein, the plaintiff is required

to prove his claim on the basis of evidence to be laid in support of

his  claim for  the recovery  of  the amount due.   A dishonour  of

cheque  carries  a  statutory  presumption  of  consideration.  The

holder  of  cheque  in  due  course  is  required  to  prove  that  the

cheque  was  issued  by  the  accused  and  that  when  the  same

presented,  it  was  not  honoured.   Since  there  is  a  statutory

presumption of  consideration,  the  burden is  on  the  accused to

rebut  the presumption that  the cheque was issued not  for  any

debt or other liability.  

21. There is the mandate of presumption of consideration in terms of

the provisions of the Act. The onus shifts to the accused on proof

of issuance of cheque to rebut the presumption that the cheque

was issued not for discharge of any debt or liability in terms of

Section 138 of the Act which reads as under:  

“138.  Dishonour of cheque for insufficiency, etc., of funds in the account. — Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either  because  of  the amount of  money standing  to  the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account  by  an  agreement  made  with  that  bank,  such person shall be deemed to have committed an offence and shall….”



22. In  Kumar Exports, it was held that mere denial of existence of

debt will not serve any purpose but accused may adduce evidence

to rebut the presumption. This Court held as under:

“20. The accused in a trial under Section 138 of the Act has two  options.  He  can  either  show  that  consideration  and debt  did  not  exist  or  that  under  the  particular circumstances  of  the  case  the  non-existence  of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut  the  statutory  presumptions  an  accused  is  not expected to prove his defence beyond reasonable doubt as is  expected  of  the  complainant  in  a  criminal  trial.  The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there  was  no  debt  or  liability  to  be  discharged  by  him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of  the  consideration  and  existence  of  debt,  apparently would not  serve  the purpose  of  the  accused.  Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act  upon  the  plea  that  they  did  not  exist. Apart  from adducing direct evidence to prove that the note in question was  not  supported  by  consideration  or  that  he  had  not incurred  any debt  or  liability,  the accused may also  rely upon circumstantial evidence and if  the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant.  The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act.”

  (emphasis supplied)



23. In a judgment reported as  Kishan Rao v. Shankargouda6,  this

Court referring to Kumar Exports and Rangappa returned the

following findings:  

“22. Another  judgment  which  needs  to  be  looked  into is Rangappa v. Sri  Mohan [Rangappa v. Sri  Mohan,  (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] . A three-Judge Bench of this Court had occasion to examine the presumption under Section 139 of the 1881 Act. This Court in the aforesaid case has held that in the event the accused is able to raise a probable defence which creates  doubt  with  regard  to  the  existence  of  a  debt  or liability, the presumption may fail. Following was laid down in paras 26 and 27: (SCC pp. 453-54)

“26. 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 [Krishna  Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] , 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.

27. 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.  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

6 (2018) 8 SCC 165



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 defendant-accused cannot be expected to discharge an unduly high standard of proof.”

24. In a judgment reported as  Bir Singh v. Mukesh Kumar7,  this

Court  held that presumption under Section 139 of  the Act  is  a

presumption of law.  The Court held as under:  

“20. Section  139  introduces  an  exception  to  the  general rule as to the burden of proof and shifts the onus on the accused.  The  presumption  under  Section  139  of  the Negotiable  Instruments  Act  is  a  presumption  of  law,  as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case  against  the  accused  beyond reasonable  doubt.  The obligation on the prosecution may be discharged with the help  of  presumptions  of  law  and  presumptions  of  fact unless  the  accused  adduces  evidence  showing  the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC (Cri) 960] .

xxx xxx xxx

33. A  meaningful  reading  of  the  provisions  of  the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it  over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may  have  been  filled  in  by  any  person  other  than  the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.

xxx xxx xxx

7 (2019) 4 SCC 197



36. Even  a  blank  cheque  leaf,  voluntarily  signed  and handed  over  by  the  accused,  which  is  towards  some payment, would attract presumption under Section 139 of the  Negotiable  Instruments  Act,  in  the  absence  of  any cogent evidence to show that the cheque was not issued in discharge of a debt.”

25. In other judgment reported as Rohitbhai Jivanlal Patel v. State

of Gujarat and Another8  this Court held as under:  

“18. So far the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 the NI  Act  is  concerned,  apparent  it  is  that  the  accused- appellant could not deny his signature on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of Rs. 3 lakhs each. The said cheques were presented to the Bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient  or  the  account  being  closed.  All  the  basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The Trial Court had also consciously taken note of these facts and had drawn the requisite  presumption.  Therefore,  it  is  required to be presumed  that  the  cheques  in  question  were  drawn  for consideration  and  the  holder  of  the  cheques  i.e.,  the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused-appellant to  establish  a  probable  defence  so  as  to  rebut  such  a presumption.”

xxx xxx xxx

20. On  the  aspects  relating  to  preponderance  of probabilities, the accused has to bring on record such facts and  such  circumstances  which  may  lead  the  Court  to conclude either that the consideration did not exist or that its  nonexistence  was  so  probable  that  a  prudent  man would, under the circumstances of the case, act upon the plea that the consideration did not exist.  This Court  has, time and again, emphasized that though there may not be sufficient  negative  evidence  which  could  be  brought  on record by the accused to discharge his burden, yet mere denial  would  not  fulfil  the  requirements  of  rebuttal  as

8 AIR  2019  SC 1876



envisaged under Section 118 and 139 of the NI Act…..

xxx xxx xxx

32. The result of discussion in the foregoing paragraphs is that the major considerations on which the Trial Court chose to proceed clearly show its fundamental error of approach where,  even  after  drawing  the  presumption,  it  had proceeded  as  if  the  complainant  was  to  prove  his  case beyond reasonable doubt. Such being the fundamental flaw on the part of the Trial Court, the High Court cannot be said to have acted illegally or having exceeded its jurisdiction in reversing  the  judgment  of  acquittal.  As  noticed hereinabove,  in  the  present  matter,  the  High  Court  has conscientiously and carefully taken into consideration the views of the Trial Court and after examining the evidence on record as a whole, found that the findings of the Trial Court are vitiated by perversity. Hence, interference by the High Court was inevitable; rather had to be made for just and proper decision of the matter.”

26. In  view  of  the  judgments  reported  to  above,  we  find  that  the

respondent has not rebutted the presumption of consideration in

issuing  the  cheque  on  2.10.2011  inter  alia  for  the  following


1. Statement  of  the  CW3,  that  he  was  not  an  agent  of  the

respondent, has not been challenged by the respondent in

the cross examination.

2. The statement of the appellant as CW2 that the cheque was

handed  over  by  the  respondent  personally  remains


3. The respondent has not denied even in his statement that

the cheque was not issued by him. The cross examination of

the witnesses produced by the appellant also does not show

that the signatures on the cheque by him have not been




4. The respondent relies upon entry recorded with the police on

09.09.2011 that  the  cheque  book  was  lost.  However,  the

respondent  has  not  lodged  any  FIR  in  respect  of  loss  of

cheque, even after the notice of dishonour of cheque was

received by him on 27.10.2011. The mere entry is not proof

of loss of cheque as is found by the learned Trial Court itself

as  it  is  self-serving  report  to  create  evidence  to  avoid

payment of cheque amount.

5. The respondent has not appeared as witness to prove the

fact that the cheque book was lost or that cheque was not

issued in discharge of any debt or liability.  

6. The statement of accused under Section 313 of the Code is

only to the effect that the cheque has been misused. There

is  no  stand  in  the  statement  that  the  cheque  book  was


7. The  statement  of  accused  under  Section  313  is  not  a

substantive evidence of defence of the accused but only an

opportunity  to  the  accused  to  explain  the  incriminating

circumstances appearing in the prosecution case of accused.

Therefore,  there  is  no evidence to  rebut  the  presumption

that the cheque was issued for consideration.  

27. Once the agent of the respondent has admitted the settlement of

due amount and in absence of any other evidence the Trial Court



or the High Court could not dismiss the complaint only on account

of discrepancies in the determination of the amount due or oral

evidence  in  the  amount  due  when  the  written  document

crystalizes the amount due for which the cheque was issued.

28.  The accused has failed to lead any evidence to rebut the statutory

presumption, a finding returned by both the Trial Court and the

High Court. Both Courts not only erred in law but also committed

perversity when the due amount is said to be disputed only on

account of discrepancy in the cartons, packing material or the rate

to determine the total liability as if the appellant was proving his

debt  before  the  Civil  Court.  Therefore,  it  is  presumed  that  the

cheques in question were drawn for consideration and the holder

of the cheques i.e., the appellant received the same in discharge

of an existing debt. The onus, thereafter, shifts on the accused-

appellant to establish a probable defence so as to rebut such a

presumption,  which  onus  has  not  been  discharged  by  the


29. Learned counsel for the respondent has referred to the judgment

reported in  M. S. Narayana Menon v. State of Kerala9 that

evidence adduced by the complainant can be relied upon to rebut

the presumption of consideration. However, said judgment has no

applicability to the facts of the present case as the Trial Court has

found that the presumption is not rebutted but still the Trial Court

9 (2006) 6 SCC 39



dismissed  the  complaint  for  the  reason  that  the  appellant  has

failed  to  prove  the  amount  mentioned  in  the  cheque  as  due

amount.   Once  the  cheque  is  proved  to  be  issued  it  carries

statutory presumption of consideration. Then the onus is on the

respondent to disprove the presumption at which the respondent

has miserably failed.  

30. In Kumar Exports evidence to rebut the presumption was led and

accepted by the Court.  In these circumstances, it was held that

the burden shifts back to the complainant and the presumption

under the Act will not again come to his rescue. However, in the

present  case,  the  presumption  of  consideration  has  not  been

rebutted by the respondent even on the basis of the evidence laid

by the appellant. The difference in the number of cartons supplied

or the rate charged is not relevant when the accounts were settled

in writing to rebut the presumption of consideration of issuance of

a cheque.  

31. In  Vijay  v.  Laxman  and  another10 this  Court  found  grave

discrepancies in the case of the complainant and that no case is

made out for when the High Court had set aside the conviction on

the basis of clear evidence giving rise to the perverse findings.  

32. Learned counsel appearing for the respondent also referred to M.

S. Narayana Menon and K. Prakashan v. P. K. Surenderan11

that if two views are possible, the appellate court shall not reverse

10 (2013) 3 SCC 86 11 (2008) 1 SCC 258



a judgment of acquittal only because another view is possible to

be taken. Learned counsel also relies upon a judgment reported as

John K. Abraham v. Simon C. Abraham12 that mere fact that

the statutory notice was not replied cannot prejudice to the case

of  the respondent.  We do not  find any merit  in  the arguments

raised  by  the  learned  counsel  for  the  respondent.  In  fact,  the

findings recorded by the courts below are total misreading of the

statutory provisions more so when the respondent has not led any

evidence  to  rebut  the  presumption  of  consideration.  Cross-

examination on the prosecution witness is not sufficient to rebut

the  presumption  of  consideration.   Mere  discrepancies  in  the

statement in respect of the cartons, trays or the packing material

or the rate charged will not rebut the statutory presumption which

is proved by CW3 Prem Chand.  

33. The conclusion drawn by the Trial  Court  and the High Court  to

acquit  the  respondent  is  not  only  illegal  but  being  perverse  is

totally unsustainable in law.  Before concluding, we would like to

put  on  record that  Ms.  Mathew has  ably  assisted  this Court  in

canvassing  that  the  order  passed  by  the  High  Court  does  not

warrant any interference in the present appeal against acquittal.

34. Consequently, the present appeal is allowed, order passed by the

High Court is set aside. The respondent is held guilty of dishonour

12 (2014) 2 SCC 236



of  cheque  for  an  offence  under  Section  138  of  the  Act.  The

respondent  shall  pay  Rs.10,77,712/-  as  fine  i.e.  twice  of  the

amount  of  cheque  of  Rs.5,38,856/-  and  a  cost  of  litigation  of

Rs.1,00,000/- within three months. If the amount of fine and the

costs  are  not  paid  within  three  months,  the  respondent  shall

undergo imprisonment for a period of six months.   

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)