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

This appeal is filed against the judgment dated 30.11.2007 in S.T. No. 220 of 2007 of the Judicial First Class Magistrate-II, Changanacherry, whereby the accused was found not guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’) and acquitted under Section 255(1) Cr.P.C.

2. The appellant is the complainant and the complaint was filed on the allegation that the accused borrowed Rs.75,000/- from the complainant and for the discharge of the said debt, he issued cheque dated 28.12.2003 and subsequently, when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds and in spite of issuance of statutory notice, the accused failed to pay the cheque amount.

3. Heard Smt. Ayisha T.S., the learned counsel representing Sri. John Varghese, the learned counsel for the appellant on record, Sri. Ananthakrishnan A. Kartha, the learned counsel for the first respondent and Sri. Sanal P. Raj, the learned Public Prosecutor appearing for the second respondent, State of Kerala.

4. In the trial court, the complainant was examined as PW1 and Exhibits P1 to P6 were marked and no evidence was adduced from the side of the accused.

5. After considering the evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in establishing that the cheque was drawn by the accused from an account maintained by her or that, Exhibit P1 cheque was executed and issued by the accused to the complainant and it was also found that the complaint was not filed within the statutory period.

6. The learned counsel for the appellant argued that the signature in the cheque is not disputed and that the accused has not issued any reply notice and the trial court has not properly appreciated the evidence of PW1 and that the trial court ought to have found that the complainant has proved the execution and issuance of the cheque.

7. But, the learned counsel for the accused/first respondent pointed out that Exhibit P4 lawyer notice is dated 10.02.2004 and that Exhibit P6, postal acknowledgment card, would show that the notice was served to the accused on 16.02.2004 and the complaint was filed only on 15.04.2004. Admittedly, there was no application to condone the delay. As per Section 142 (1)(b) of the NI Act, the complaint is to be filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the NI Act and therefore, there is no reason to disagree with the finding of the trial court in this regard.

8. The learned counsel for the accused/first respondent pointed out that the complainant has not disclosed the date on which he advanced money to the accused, in the complaint or the statutory notice. In cross examination, PW1 stated that he paid the money to the accused during November, 2003 and subsequently, the accused entrusted Exhibit P1 cheque to his wife on 28.12.2003. PW1 categorically admitted in cross examination that he was not present in the house when the accused handed over the cheque to his wife. PW1 also admitted in cross examination that the cheque was not signed in his presence and that the cheque was not handed over to him by the accused. PW1 cannot say as to who wrote the contents of Exhibit P1 cheque.

When the learned counsel for the accused made a specific suggestion that the handwriting and signature in Exhibit P1 cheque is not that of the accused, PW1 stated that the same is not known to him. However, PW1 denied the suggestion that the accused never had any transaction with him and that the transaction was between the accused and his wife.

9. The evidence of PW1 in cross examination clearly discloses that he has no direct knowledge regarding the issuance and execution of the cheque. It is also pertinent to note that even though PW1 stated that the accused entrusted the cheque to his wife, he has not examined his wife to prove that it was the accused who executed