The complainant must prove the existence of a legally enforceable debt, and the accused can raise a probable defense from the material brought on record. The standard of proof is preponderance of probabilities, and the accused is not required to disprove the existence of consideration by leading direct evidence.

1. This appeal is preferred by the original complainant against the judgment and order dated 19/01/2011 passed by the learned Judicial Magistrate First Class at Panaji in Criminal Case No.OA 107/09/C, thereby acquitting the respondent/accused from the offence punishable under Section 138 of the Negotiable Instruments Act of 1881.

2. It is the case of the original complainant that in the month of February, 2008, the respondent/accused approached the complainant for loan of Rs.5,00,000/- (Rupees five lacs only) and therefore on 26/02/2008, the original complainant gave him loan of Rs.5,00,000/- (Rupees five lacs only) on condition that he would repay the said amount within a period of 6 months and if not paid he would pay interest at the rate of 5% on the said amount. At the relevant time, i.e. on 26/02/2008, the original complainant and the respondent/accused entered into an agreement in which the respondent/accused had acknowledged the debt of Rs.5,00,000/-(Rupees five lacs only) and also acknowledged the repayment of the said loan with interest. The respondent/accused issued a postdated cheque dated 26/08/2008, bearing no.583394 of Rs.5,00,000/- (Rupees five lacs only) drawn on State Bank of India, Canacona Branch, Goa. The said cheque was deposited by the original complainant, but it was dishonoured for want of sufficient funds. The complainant therefore sent legal notice to the respondent/accused and demanded the said amount due to him. However, the said liability was denied by the respondent/accused by replying to the said notice. The original complainant thereafter lodged criminal case in the Court of Judicial Magistrate First Class, Panaji, Goa under Section 138 of the Negotiable Instruments Act. The said case was tried by the learned Magistrate and it was concluded in dismissal of the said complaint and the respondent/accused was acquitted from the offence punishable under Section 138 of the Negotiable Instruments Act. Hence, this appeal.

3. Learned Counsel for the original complainant/appellant has submitted that the learned Judge while appreciating the evidence on the point of facts and also law has committed error and especially on the point of not properly appreciating the presumption under Section 139 of the Negotiable Instruments Act. He submitted that the learned Trial Court did not frame the points of determination as per the requirement of law under Section 138 of the Negotiable Instruments Act. It was necessary for the learned Trial Court to frame point of determination on the point in respect of the proof of ingredients of Section 138 of the Negotiable Instruments Act. However, the learned Judge has framed only one point as to whether the complainant could prove that the accused has issued the cheque towards the discharge of his liability or not. The learned Counsel has submitted that the learned Trial Court did not consider that the complainant has discharged his burden of proving that the loan of Rs.5,00,000/- (Rupees five lacs only) was accepted by the respondent/accused. The Trial Court ought to have accepted the contents in the agreement dated 26/02/2008, which is marked at Exhibit 31. He referred the statutory notice dated 1/12/2008 and also reply given to the notice dated 3/02/2009, marked Exhibit 37. Learned Counsel argued that the learned Trial Judge has erroneously mixed up the other transactions of land dealings which had taken place between the original complainant and the respondent/accused. The respondent/accused had mortgaged a land with the Bank and the original complainant wanted to buy the said mortgaged land. Original complainant had entered into an agreement of sale in respect of the said mortgaged land, where the respondent/accused was a co-owner. The learned Counsel has submitted that the Trial Judge has erred in holding that the original complainant was not having the financial capacity to give loan of Rs.5,00,000/- (Rupees five lacs only) in February, 2008. The learned