The main legal point established in the judgment is that the standard of proof required for rebutting the presumptions under Sections 118 and 139 of the Negotiable Instruments Act is 'preponderance of probability' and not 'proved beyond reasonable doubt'. The accused can rebut the presumption by raising a probable defense.

Tarlok Singh Chauhan, J.

The appellant is the complainant, who aggrieved by the order of acquittal passed by the learned trial Magistrate on 20.11.2017 in a complaint under Section 138 of the Negotiable Instruments Act (for short the 'Act'), has filed the instant appeal.

2. Taking into consideration the nature of the order I propose to pass, it is not necessary to delve into the facts in detail save and except that in the complaint filed by the appellant it was averred that the respondent/accused was a good friend and had requested for financial assistance of Rs.1,80,000/- which was required by him for running his business smoothly and properly. The complainant arranged this amount and handed over the same to the respondent. The respondent in turn issued cheque bearing No.523642 on 5.7.2014 amounting to Rs.1,80,000/- drawn at State Bank of India, Branch at Kali Bari, Shimla in favour of the complainant. Upon presentation of the cheque by the complainant in his bank Axis Bank, Ltd SDA Complex, Kasumpti, Shimla on 30.8.2014, the same was dishonoured on account of 'insufficient funds'. The complainant sent legal notice on 6.9.2014, but despite service thereof, the respondent/accused did not make the payment, constraining the complainant to file the complaint under Section 138 of the Act.

3. On the basis of preliminary evidence led by the complainant, the respondent/accused was summoned and claimed trial by pleading not guilty.

4. The complainant examined himself as CW-1 and tendered certain documents in his evidence. Thereafter, the statement of the respondent/accused under Section 313 Cr.P.C. was recorded in which he stated that a false case has been made against him and in defence, the accused/respondent examined two witnesses and thereafter closed his evidence.

5. As observed above, the learned trial Magistrate dismissed the complaint and acquitted the respondent/accused of the charge under Section 138 of the Act, constraining the complainant to file the instant appeal.

6. It is vehemently argued by Mr. L.S. Mehta, learned counsel for the appellant, that the findings recorded by the learned trial Magistrate are perverse and, therefore, deserve to be set-aside. Whereas, on the other hand, Mr. Mohar Singh, learned counsel for the respondent/accused would contend that the order of acquittal as passed by the learned Court below is based on correct appreciation of the complaint as also the oral and documentary evidence led on the record and, therefore, the order warrants no interference by this Court.

7. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

8. A perusal of the impugned order would reveal that the learned trial Magistrate after referring to the oral and documentary evidence on record has in para-12 observed as under:

"The initial onus to prove that the complainant has advanced a sum of Rs.1,80,000/- to the accused who in discharge of the said legal liability issued cheque Ext.CW-1/A which was dishonoured was upon the complainant only...."

9. Likewise, similar observations are found in para-15 of the order and the same read as under:

"The complainant was required to prove presumption as provided under Section 118(A) of the Negotiable Instruments Act, that cheque in question was issued for consideration and if said presumption is proved on record then only burden shifts upon the accused as provided under Section 139 of the Negotiable Instruments Act. It is presumed that cheque in question was issued in discharge of some legal liability and holder of the cheque received the said cheque on account of some such liability. The complainant in the present case miserably failed to prove from the entire evidence on record that there was any such legal liability of the accused in discharge of which he issued cheque Ext.CW-1/A, which was dishonoured on the ground of insufficient funds qua which memo Ext.CW-1/B was also issued. The complainant failed to discharge initial bur