IMPORTANT POINTS
(1) Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
(2) Whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof as to prove a defence on the part of an accused is preponderance of probabilities.

V.K. Mohanan, J.—This appeal as the third round litigation is instituted at the instance of the complainant in a cheque case. In this appeal, he challenges the order of acquittal passed by the Court of Additional Sessions Judge (Fast Track), Thodupuzha in Criminal Appeal No. 249/2002, an appeal which preferred by the accused against CC No. 546/2001, in which he was convicted under Section 138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for one year and he was also directed to pay the cheque amount that is Rs. 2,50,000/- as compensation to P.W.1 under Section 357(3) of Cr.P.C.

2. In this appeal, the case of the appellant/complainant is that the accused borrowed a sum of Rs. 2,50,000/- from him on 18.8.2000 and towards discharge of the said debt, the accused had issued Ext. P1 cheque dated 5.9.2000 for an amount of Rs. 2,50,000/-, which when presented for encashment, dishonoured as per Ext. P2 Memo dated 29.9.2000 received from the Bank of the complainant. It is the further case of the complainant that on receipt of Ext. P2 memo he had caused to issue Ext. P3 notice dated 26.9.2000 through the lawyer informing the accused about the dishonour of the cheque and demanding to pay the amount covered by the cheque. According to the complainant and as evidenced by Ext. P4, though the accused received the notice on 29.2.2000, amount was not repaid. Then the complainant approached the Judicial First Class Magistrate, Court-II, Thodupuzha by filing a complaint under Section 138 of the N.I. Act where cognizance was taken, but it was withdrawn and made over the Trial Court, wherein CC No. 546/2001 was refiled. When the accused appeared before the Trial Court, particulars were read over and explained to him, to which he pleaded not guilty, thus resulted in the further trial of the case, during which the complainant himself was examined as P.W.1 and the Secretary of the Thodupuzha Co-operative Bank, where the complainant maintaining the account, was also examined as P.W.2. Apart from the above oral evidence, the documentary evidence such as Exts. P1 to P5 were produced from the side of the complainant. When the accused questioned under Section 313 of Cr.P.C., he denied the incriminating circumstances came out through the evidence and his further defence is that he had not executed and issued Ext. P1 cheque to the complainant and there was no transaction between them and no debt is due from him to the complainant. He has also a case, as defence, that Ext. P-1 cheque was the one, which he gave as security when there was a transaction between himself and one Mr. T.P. Jose, According to the defence, the said cheque was obtained by the complainant through one Sri Sajimon and one Sri Joseph. Based upon the rival contentions and pleadings raised by the parties the Trial Court formulated three points for its consideration. Finally, the Trial Court found that even the reason for dishonour of the cheque as “payment stopped by the drawer” the offence attracted and accordingly, the accused found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo a simple imprisonment for one year and also directed to pay the cheque amount of

Rs. 2,50,000/- as compensation to the complainant under Section 357 (3) of Code of Criminal Procedure.

3. Aggrieved by the conviction and sentence and direction to pay compensation, the accused preferred Criminal Appeal No. 249/2002 before the Court of the Additional Sessions Judge-II. Thodupuzha. By its judgment dated 27.12.2003 in the above appeal, the Sessions Court set aside the finding and reversed the conviction arrived on the Trial Court and acquitted the accused, and it is the above order challenged in this appeal.

4. I have heard the learned Counsel for the appellant, Mr. T.V. George and Mr. N. James Koshy the learned Counsel for the respondents.

5. The learned Counsel for the appellant submitted that the only contention of