The appellant who is the complainant in a petition filed under section 138 of the Negotiable Instruments Act filed this appeal against the acquittal of the respondent/accused under section 255(1) of the Code of Criminal Procedure. His case was that the accused persons had borrowed Rs.3,00,000/= from him for the purpose of first respondent M/s. Walson Laboratories, Kozhikode and the second respondent issued a cheque dated 26.7.1993 towards the liability. The second respondent is the managing partner. Respondents 3 and 4 are the partners of the registered firm. The cheque was signed by the second respondent. Since there was no sufficient money in the account of the second respondent, the cheque was dishonoured and he approached the court. The Magistrate's Court after considering the evidence found that the complainant failed to prove that the cheque was issued in discharge of a legally enforceable debt and also found that if a deemed date is taken as the date of service of statutory notice to the second respondent, the matter is time barred. Service of notice to the second accused as contended by the complainant was not proved. I have gone through the evidence. As regards the first contention, neither in the sworn statement nor in the chief examination the appellant/complainant stated that the cheque was issued for valid consideration. He did not depose in chief examination the date when advance was given, when the cheque was received and at which place it was issued. But, during cross examination it is stated the cheque was issued at his house and he also stated that he advanced money to the first respondent firm as it was in dire financial needs. He has a further case that he had Rs.1,25,000/= in cash with him and he borrowed Rs.1,75,000/= from one Bala Kurup and paid Rs.3,00,000/= to the second respondent for the purpose of the firm. The source of Rs.1,25,000/= kept by him in cash was not proved. He did not also examine Bala Kurup or adduce any evidence to show that Bala Kurup handed over the balance Rs.1,75,000/= to him. Being a bank employee the complainant should have details of the money he was having and money he has borrowed. So, relying on the evidence of the complainant itself the trial court came to the conclusion that the complainant was not able to prove that the cheque was issued for valid consideration. Respondents 2, 3 and 4 are brothers of the complainant and it has come out in evidence that there are various other cases pending between them. Another Bank Manager also filed cases against these accused and according to the respondents/accused those cases are also filed at the instance of the complainant. Section 139 of the Negotiable Instruments Act only provides rebuttable presumption. It is settled law that burden of the accused to rebut the presumption is by preponderance of probabilities and not beyond reasonable doubt. Since from the evidence of the complainant itself accused was able to prove that consideration was not paid and, therefore, initial burden has been discharged by the accused, presumption under section 139 of the Negotiable Instruments Act disappeared in this case as held by the Supreme Court in Narayana Menon v. State of Kerala (2006 (3) KLT 404 (SC)).

2. Secondly it was found that there was no valid service of notice and if there was valid service of notice complaint is time barred. As far as the first accused firm is concerned, even according to the complainant, the money was given for the firm and cheque was issued in the name of the firm, but, no evidence was adduced to show that any notice was issued to the first accused firm. With regard to the second accused, notice was returned unserved stating that `door was locked'. Endorsement in the acknowledgment card (Ext.A9) shows that notice was issued to the second accused at a given address. The postman found that the addressee left that place and letter was redirected on 29.7.1993. The postman on getting information about a possi