The standard of proof required from the accused to rebut the statutory presumption under Section 139 of the Negotiable Instruments Act is preponderance of probabilities, and the accused is not required to prove his case beyond reasonable doubt.

This appeal is filed against the judgment in C.C No.177 of 1998 on the file of the Judicial First Class Magistrate Court, Mattannur challenging the acquittal of the accused of the offence under Section 138 of the Negotiable Instruments Act (in short 'N.I Act') under Section 255(1) of the Cr.P.C.

2. The appellant is the complainant. The case of the complainant is that the accused borrowed Rs.70,000/- in the month of November, 1997 and in discharge of the said debt, he issued a cheque dated 16-12- 1997 and subsequently when the complainant presented the cheque for collection, the same was dishonouored due to insufficiency of funds in the account of the accused and in spite of issuance of statutory notice, the accused failed to pay the cheque amount.

3. Heard Sri.Jose Antony, the learned counsel for the appellant, Sri.Cibi Thomas, the learned counsel for the first respondent and Sri.Vipin Narayan, the learned Senior Public Prosecutor for the second respondent State of Kerala and perused the records.

4. In the trial court, the complainant was examined as PW1 and Exts.P1 to P6 were marked and from the side of the accused Exts.D1 to D3 were marked.

5. After considering the evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in proving the execution and issuance of the cheque by the accused to the complainant in discharge of any debt or liability and that the accused has succeeded in rebutting the statutory presumptions.

6. Learned counsel for the appellant argued that the trial court ought to have found that Ext.P1 cheque is drawn by the accused from an account maintained by him with a banker and since PW1 has adduced prima facie evidence regarding the execution and issuance of the cheque, the trial court ought to have found that the complainant is entitled for the benefit of the statutory presumptions.

7. But the learned counsel for the accused/first respondent pointed out that the complainant has not disclosed the date of execution and issuance of the cheque in the complaint or in the chief examination and that PW1 has categorically admitted in cross examination that he received Ext.P1 cheque as security and that PW1 has no consistent case regarding the execution and issuance of the cheque.

8. PW1 deposed that the accused borrowed Rs.70,000/- during November, 1997 and subsequently issued Ext.P1 cheque in discharge of the said liability. In cross examination, PW1 admitted that previously he filed another cheque case against the accused herein and in the said case, the cheque was for Rs.40,000/-. He also stated that during 1996, the accused borrowed Rs.80,000/- and subsequently the witness corrected that it was during March, 1997 the accused borrowed Rs.80,000/- from him. PW1 would say that the accused borrowed Rs.50,000/- from him during 1996. He admitted that Ext.D1 is a complaint filed by him against the accused and that Ext.D2 is the copy of the order in the said case. PW1 also admitted the suggestion of the defense counsel in cross examination that he obtained Ext.P1 cheque as security. PW1 denied the suggestion that when the accused borrowed Rs.15,000/- during 1995, he obtained a blank cheque as security and subsequently filed Ext.D1

complaint. PW1 also denied the suggestion that at the time of settling Ext.D1 complaint, the accused paid Rs.10,000/- and for the remaining Rs.7,000/-, he handed over a blank cheque and the said cheque was misused for filing this case. Ext.D3 report of the handwriting expert shows that on comparison of the specimen writings of the accused with that of the writings in Ext.P1 cheque, it is found that the disputed writing is not made by the person who made the specimen writings. The evidence of PW1 in cross examination would shows that there was previous financial transactions between the accused and the complainant and in cross examination, PW1 also admitted that he received Ext.P1

cheque as security at the time of advancing the money to the accu