The court emphasized the presumption under Section 139 of the N.I. Act, the authority to fill-up blanks on a cheque under Section 20, and the implications of cheque issuance and dishonor under Section 138.

K.N. KESHAVANARAYANA, J.—This appeal by the legal representative of the original complainant namely Pothedar Siddaiah in C.C. No. 694 of 2003 on the file of the Additional Civil Judge (Jr. Dn.) & JMFC, Mandya, is directed against the judgment and order dated 24.09.2005 passed in the said case acquitting the respondent/accused of the charge levelled against him for the offence punishable under Section 138 of the Negotiable Act (for short, ‘N.I. Act’)

2. The original complainant filed private complaint alleging the offence punishable under Section 138 N.I. Act against the respondent inter alia contending that, the accused obtained hand-loan of Rs. 2,75,000/- from him for his contract work in the month of September 1999 agreeing to repay the same within three months; that on 25.01.2000, the accused issued a cheque drawn on Vishweshwaraiah Grameena Bank, Bharathinagar Branch, for Rs. 2,75,000/- in favour of the complainant towards discharge of loan due by him; when the said cheque was presented for encashment, the same was returned unpaid with Banker’s endorsement ‘Insufficient Funds’ and in spite of service of statutory notice, the accused has failed to pay the amount covered under the cheque.

3. The respondent/accused appeared before the learned Magistrate and pleaded not guilty for the accusation made against him. His defence was that he had not borrowed any money from the complainant and that the cheque in question was not issued to the complainant for discharge of any debt or liability due by him. It was his further defence that he had kept his bank cheque book in the motor cycle owned by him and few days prior to the purported date of the cheque, his motor cycle was stolen by some one from near the telephone exchange in Mandya. When the motor cycle was traced after three days, on verification, he noticed one of the cheque leaves found missing from the cheque book and later, he learnt that the son-in-law of the complainant, who had stolen the motor cycle, had removed the cheque leaf from the cheque book and the same has been misused by the complainant, though no amount was due to him by the accused.

4. During the pendency of the case, before the trial Court, the original complainant died and thereafter, his son-H.S. Ramesh came on record and continued the prosecution. After recording the evidence led by the parties, the learned Magistrate by the judgment under appeal held that the cheque in question was delivered to the complainant in blank state to hold the same as security and not for discharge of any debt or liability, and that since the circumstances brought on record indicate that the complainant had no financial capacity to advance huge amount of Rs. 2,75,000/-, the complainant had no authority to fill-up the blank signed cheque of the accused for a sum of Rs. 2,75,000/-, therefore, the accused has satisfactorily rebutted the presumption under Section 139 of the N.I. Act. However, the learned Magistrate did not accept the defence theory that the cheque was stolen along with the motor cycle. In view of the finding recorded by the learned Magistrate, the respondent/accused was acquitted of the charge levelled against him. Aggrieved by the said judgment of acquittal, the legal representative of the original complainant has presented this appeal.

5. I have heard the learned counsel appearing for the appellant as well as the respondent/accused. Perused the records secured from the trial Court.

6. It is now fairly settled by catena of decisions of the Apex Court that the presumption under Section 139 of the N.I. Act extends even to the existence of the debt and it is for the drawer of the said cheque to rebut the said presumption. Of course, it is also fairly well-settled that the accused is not required to prove his defence beyond reasonable doubt. The standard of proof regarding the defence plea is one of preponderance of probabilities. As noticed supra, the defence of the accused that he had kept the cheque book in the