JUDGMENT ( 1. ) THIS Criminal Appeal is filed under Section 378 of the Code of Criminal Procedure by the Counsel for the appellant praying to set aside the order dated 10. 10. 2002 passed by the XIII additional Chief Metropolitan Magistrate, Bangalore in Criminal Case No. 14277 of 1998, acquitting the respondent accused for the offence punishable under Section 138 of the Negotiable Instruments Act. ( 2. ) THE brief facts of the case of the complainant in the trial Court are as follows: the complainant and the accused were known to each other and they were friends for the past several years. On 5. 2. 1997 the accused approached the complainant and borrowed a Joan of Rs. 50,000/- to meet his urgent family needs. On the same day, the accused executed an on demand promissory note and consideration receipt in favour of the complainant. The complainant approached the accused several times seeking to repay the loan amount. But the accused evaded the same on one pretext or the other. On 14. 4. 1997 the accused issued a cheque bearing No. 221860 dated 15. 4. 1997 for Rs. 50,000/- drawn on Sri Thyagaraja Co-operative Bank limited, N. R. Colony, Bangalore towards payment of the said amount. The said cheque was presented before the Apex Bank, HSR Agra Branch, bangalore for encashment. The said cheque was dishonoured with a shara "insufficient funds" on 17. 4. 1997. Thereafter, the complainant got issued a legal notice on 26. 4. 1997 to the accused. The notice sent through registered Post Acknowledged Due was returned with postal shara 'party not found during delivery time'. Since the accused did not comply with the demand made in the legal notice, the complainant was constrained to lodge a complaint. In the trial Court the plea of the accused was recorded. Accused pleaded not guilty and claimed to be tried. In the trial Court the complainant was examined as PW1 and Exhibits P-l to P-6 were marked. Accused was examined as DW-1 and Exhibits D-1 and D-2 were marked. ( 3. ) THE sum and substance of the finding of the trial Court is as follows: there is a dispute between the complainant and the accused with regard to service of notice. PW-1 affirms that he got issued a legal notice to the accused through Registered Post Acknowledgment Due on 26. 4. 1997. ( 3. ) THE sum and substance of the finding of the trial Court is as follows: there is a dispute between the complainant and the accused with regard to service of notice. PW-1 affirms that he got issued a legal notice to the accused through Registered Post Acknowledgment Due on 26. 4. 1997. The said notice was returned with postal shara 'party not found during delivery time'. DW-1 during his cross-examination submits that the address appearing on Exhibit P-5 - the returned RPAD cover pertains to him only. A perusal of Exhibit P-5, returned Registered Post Acknowledgment Due cover, clearly discloses that the notice has been returned with postal shara 'party not found during the delivery time'. DW-1 during his cross-examination specifically admits that the address given in Exhibit P-5 is the correct address and therefore it cannot be said that the notice sent by the complainant has not been duly served on him. ( 4. ) THE trial Court has further observed that PW-1 has stated that on 5. 2. 1977 the accused approached him and borrowed loan of Rs. 50,000/- for his domestic problems agreeing to repay the same within 15 days. Thereafter, the accused did not return the said amount as agreed upon. Inspite of repeated requests and demand, the accused issued a cheque for rs. 50,000/- dated 15. 4. 1999 drawn on Thyagaraja Co-operative Bank limited, Bangalore. DW-1 denies the version of PW-1. According to DW-1, he is having the site bearing No. 1128, situated at HSR Layout, Sector-I, Bangalore. In the year 1995-96, he had sold the said property to the complainant for a sale consideration of Rs. 2,30,000/- and executed a general Power of Attorney in favour of the complainant. After two-three months, the complainant approached him and expressed his inability stating that he is not in a position to purchase the said site and demanded for return of sale consideration of Rs. 2,30,000/ -. He has accepted the offer of the complainant and also agreed to return the said amount by installments. In this behalf, written agreement was entered into between the accused and the complainant on 26. 4. 1996. As per the said agreement, he had discharged the entire amount to the complainant except Rs. 50,000/ -. For the said remaining balance amount of Rs. 50,000/-, the complainant obtained exhibit P-2 cheque as security. On 15. 4. In this behalf, written agreement was entered into between the accused and the complainant on 26. 4. 1996. As per the said agreement, he had discharged the entire amount to the complainant except Rs. 50,000/ -. For the said remaining balance amount of Rs. 50,000/-, the complainant obtained exhibit P-2 cheque as security. On 15. 4. 1997 he had given Rs. 50,000/- to the complainant and obtained the consideration receipt as per Exhibit D-1. On perusal of Exhibit D-1, it is reveals that on 15. 4. 1997 the accused paid a sum of Rs. 50,000/- in respect of the cheque bearing No. 221860. There is a dispute between the complainant and the accused with regard to the endorsement dated 15. 4. 1997. Complainant states that the accused has forged the receipt at Exhibit D-1 as well as the signature of the complainant. If really the accused forged the signature of the complainant as per Exhibit D-1 (b), nothing prevented the complainant to take the opinion of the Handwriting Expert. Without referring the document to the Handwriting Expert, it is not safe to come to the conclusion that the signature at Exhibit D-1 (b) is forged by the accused. Moreover, PW-1 during his cross-examination has specifically admits that the contents of Exhibit d-l Agreement is in his handwriting except Exhibit D-1 (a ). The Trial Court has further observed that, according to Section 73 of the Indian Evidence Act, 1872, the trial Court was having ample power to compare the admitted and disputed signature appearing on available records. On perusal of the signature appearing on complaint, his vakalath and Exhibit D-1, they appear to be similar. Therefore, it cannot be said that the accused has not paid Rs. 50,000/- to the complainant on 15. 4. 1997. Further, on perusal of Exhibit D-1, it clearly discloses that the transaction held in between the complainant and the accused with regard to the site for a sale consideration of Rs. 2,30,000/- and the accused has also returned the said amount by instalment to the complainant. If really the accused borrowed the hand loan of Rs. 50,000/- on 5. 2. 1997 from the complainant, nothing prevented the complainant to produce any documentary evidence to show that he had advanced a loan of Rs. 50,000/- to the accused on 5. 2. 1997. 2,30,000/- and the accused has also returned the said amount by instalment to the complainant. If really the accused borrowed the hand loan of Rs. 50,000/- on 5. 2. 1997 from the complainant, nothing prevented the complainant to produce any documentary evidence to show that he had advanced a loan of Rs. 50,000/- to the accused on 5. 2. 1997. Without producing any documentary evidence, on the sole testimony of PW-1 it is not safe to come to the conclusion that he had advanced a loan of Rs. 50,000/- to the accused on 5. 2. 1997. It is submitted on behalf of the complainant that the accused concocted Exhibit D-1 and forged the signature of the complainant as per Exhibit D-1 (b), because the entire Exhibit D-1 except last para of the last page is in the handwriting of the complainant. It is also admitted by DW-1. The last para of the last page is in typing and this itself proves that the said para is forged one. If really the complainant has not signed Exhibit D-1 at last page and last para and the same has been forged by the accused, nothing prevented the complainant to take opinion of the handwriting expert. In the present case, the complainant miserably failed to do so. Exhibit P-2 cheque was issued by the accused in favour of the complainant in respect of the site transaction as collateral security. Even after discharging the said debt, the complainant did not return Exhibit P-2 the cheque to the accused. Therefore, the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act is not attracted and the said transaction is purely a civil nature. There is no reasonable ground to presume that the accused had borrowed a loan of Rs. 50,000/- from the complainant on 5. 2. 1997 and issued Exhibit P. 2 cheque voluntarily in order to discharge his liability or debt. When the accused has not given Exhibit P-2 cheque to the complainant voluntarily in order to discharge- his liability, then the question of committing offence punishable under Section 138 of the negotiable Instruments Act does not attract. Therefore, the accused was acquitted for the offence punishable under Section 138 of the Negotiable instruments Act. Aggrieved by the same, the appellant complainant has preferred this appeal. ( 5. Therefore, the accused was acquitted for the offence punishable under Section 138 of the Negotiable instruments Act. Aggrieved by the same, the appellant complainant has preferred this appeal. ( 5. ) I have heard the learned Counsel for the appellant and the learned counsel for the respondent and perused the records. ( 6. ) THE learned Counsel for the appellant submitted as under: cheque at Exhibit P-2 is issued by the complainant towards repayment of the loan amount. According to the complainant, burden lies on the accused to establish that he has discharged the loan amount. The trial court has erred in not comparing the disputed signature in a proper perspective. According to Section 118 of the Negotiable Instruments Act, there is a presumption as to the negotiable instruments. Therefore, the trial Court has erred in not appreciating the presumption as to the negotiable instruments in the present case. The accused has failed to establish that he has discharged the loan amount. There is a demand promissory note, consideration receipt and the cheque in question. Therefore, the trial Court, without considering these documentary evidence have come to the conclusion that there is no loan transaction between the complainant and the accused. Finding recorded by the trial Court suffers from infirmity. Learned Counsel for the respondent submits as follows: the case is based on false foundation i. e., Exhibit D-1 dated 5. 2. 1997. Complainant accepts his signature and also he has received Rs. 40,000/-on that day. Therefore, on the same day, it is unbelievable to say that the accused has borrowed the loan amount of Rs. 50,000/ -. Under Section 138 of the Negotiable Instruments Act, there is presumption in favour of the holder of the cheque. But this presumption is a rebuttable one. In the instant case the accused has adduced evidence and produced documentary evidence to displace the presumption which was in favour of the complainant. Material alteration of the cheque is also admitted by the complainant. Seven endorsements were accepted by the complainant but eighth endorsements is not accepted. ( 7. ) THE learned Counsel for the respondent has relied on the following decisions in support of his contentions. 1) AIR 2006 SC 3366 - M. S. Narayana Menon Alias Mani vs. State of Kerala and Another, wherein it is held as under: " (A) Negotiable Instruments Act (26 of 1881 ). ( 7. ) THE learned Counsel for the respondent has relied on the following decisions in support of his contentions. 1) AIR 2006 SC 3366 - M. S. Narayana Menon Alias Mani vs. State of Kerala and Another, wherein it is held as under: " (A) Negotiable Instruments Act (26 of 1881 ). Sections 138, 139, 118 - Dishonour of Cheque - Presumption as to - Rebuttal of - Accused carrying on transactions in shares through respondent in Stock Exchange allegedly issued cheque for discharge of debt which was dishonoured - Said liability by way of debt arose in terms of transactions - Discrepancies found in book of accounts maintained by respondent for proving said transactions - Defence of accused that cheque was issued for purpose of discounting appears to be probable - Accused discharging his initial burden - Failure on part of respondent to discharge burden shifted to him - Conviction of accused, set aside. (B) Evidence Act (1 of 1872), Section 57 - Judicial notice -Transactions in relation to Stock Exchange are regulated by statute and Statutory Rules - Transactions comprising purchases and sales of shares by investors is a matter of confidence not disputed - Both parties would have to rely upon one another -Courts of law may take judicial notice of practice prevailing in such business. " 2) 2008 AIR SCW 738 - Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, wherein it is held as under: "(A) Negotiable Instruments Act (26 of 1881 ). Section 139 -Presumption under - Section 139 merely raises presumption in favour of holder of cheque that same has been issued for discharge of any debt or other liability - Existence of legally recoverable debt - Is not a matter of presumption under Section 139. (B) Negotiable Instruments Act (26 of 1881), Sections 138, 139 - Dishonour of cheque - Defence - Proof - Accused not required to step into witness-box - He may discharge his burden on basis of materials already brought on record - Question whether statutory presumption rebutted or not - Must be determined in view of other evidences on record. (C) Negotiable Instruments Act (26 of 1881), Section 139 -Presumption under - Rebuttal - Duty of Court - Presumption of innocence as human rights and doctrine of reverse burden introduced by Section 139 - Should be delicately balanced - It largely depends on factual matrix of each case. (C) Negotiable Instruments Act (26 of 1881), Section 139 -Presumption under - Rebuttal - Duty of Court - Presumption of innocence as human rights and doctrine of reverse burden introduced by Section 139 - Should be delicately balanced - It largely depends on factual matrix of each case. " 3) J996 Crl. L. J. 3516 - Dhanna Etc. Vs. State of Madhya pradesh, wherein it is held as under: "(A) Penal Code (45 of 1860), Section 34 - Applicability -Court can take recourse to Section 34 even if said Section was not specifically mentioned in charge (B) Criminal Procedure Code (2 of 1974), Sections 386,378 -Appeal from acquittal or appeal from conviction - Powers of appellate Court - Scope. (C) Penal Code (45 of 1860), Section 300 - Murder - Proof -Prosecution witness did not refer to any role played by accused when he gave statement to police during investigation - Accused cannot be convicted for murder on basis of improvement made by said witness at trial. 4) 2002 (7) Supreme Today 598 - C. Antony Vs. K. G. Raghavan Nair, wherein it is held as under: "negotiable Instruments Act, 1881 - Section 138 - Offence of dishonour of cheque on ground of "payment stopped by drawer" - Appellant stopped payment because blank cheque given to another was used by respondent - Respondent hot proved advancing of any money to appellant - Nor proved that cheque was given to him - Trial Court acquitted the appellant - High court reversed the acquittal on a different view - Appeal against- Whether High Court was right? (No) - Appeal allowed - Case-law referred. " 5) (2007) 5 SCC 264 - Kamala S. Vs. (No) - Appeal allowed - Case-law referred. " 5) (2007) 5 SCC 264 - Kamala S. Vs. Vidhyadharan M. J. and Another, wherein it is held as under: "negotiable Instruments Act, 1881 - Sections 139, 118 (a)and 138 - Presumption under Sections 139 and 118 (a) is rebuttable - Whether presumption rebutted or not would depend upon- facts and circumstances of each case - Burden on accused to rebut the presumption can be discharged by preponderance of probabilities - Court can draw inference from material brought on record as well as circumstances relied upon by accused -Defence case put forth by accused to rebut the presumption under section 139 found by trial Court to be probable - Held, High court, without stating why the findings of trial Court were not probable, erred in taking a different view against the accused and interfering with judgment and order of trial Court - Trial court's view that accused having discharged the initial burden, onus shifted on the complainant who failed to prove his case beyond reasonable doubt without help of the presumption, held, was justified - Hence High Court was not justified in convicting the accused - appellant under Section 138. " ( 8. ) IN an appeal from acquittal, the Court has to keep in mind the following four matters - (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption not weakened by the fact that the accused has been acquitted at his trial. An acquitted accused should not be put in peril of conviction on appeal save where substantial and compelling grounds exist for adopting such a course. (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage seeing the witnesses. In this background, let me examine as to whether the finding recorded by the trial Court is not proper. Insofar a finding relating to issuance of notice and the accused declining to receive the same and the trial Court coming to the conclusion that notice sent by the complainant has not been duly served on him, is proper. ( 9. In this background, let me examine as to whether the finding recorded by the trial Court is not proper. Insofar a finding relating to issuance of notice and the accused declining to receive the same and the trial Court coming to the conclusion that notice sent by the complainant has not been duly served on him, is proper. ( 9. ) THE next aspect I have to examine is whether there was a loan transaction between the accused and the complainant and what is the finding of the trial Court in coming to the conclusion that there are no reasonable grounds to presume that the accused has borrowed the loan of rs. 50,000/- from the complainant. Further, the trial Court has held that the complainant has filed a complaint under Section 138 of the Negotiable instruments Act is not attracted and the said transaction is civil in nature. It is an undisputed fact that there was transaction between the accused and the complainant in respect of the site settlement and several payments were made to the complainant by the accused. This has been admitted by the complainant also. On 5. 2. 1997 there is an endorsement to the effect that he has received Rs. 40,000/- and the balance amount of Rs. 50,000/-will be repayable by Krishnamurthy on or before 15. 4. 1997. But, it is the case of the complainant that on 5. 2. 1997 the accused has borrowed the loan of Rs. 50,000/ -. He has also executed an On Demand Promissory Note and consideration receipt. It is strange to note that on the same day i.e., 5. 2. 1997 the complainant received Rs. 40,000/- from the accused and further accused borrowed Rs. 50,000/- from the complainant by executing an On demand Promissory Note. This creates a doubt in the case of the complainant. On careful perusal of the legal notice and Exhibit D-1, the agreement executed by him on 26. 4. 1996 which was produced during the course of cross-examination, it is difficult to infer that there was a loan transaction between the accused and the complainant. The genesis of the case of the complainant itself creates a doubt. The version of the defence is that he has paid the entire; amount. But the complainant denied the payment of amount by the accused. The endorsements at Exhibit D-l cannot be believed. The genesis of the case of the complainant itself creates a doubt. The version of the defence is that he has paid the entire; amount. But the complainant denied the payment of amount by the accused. The endorsements at Exhibit D-l cannot be believed. The trial Court has exercised its power under Section 73 of the Indian Evidence Act and perused the signature appearing on the complaint, vakalath and Exhibit D-1, which appeared to be similar. Exhibit D-1 discloses that there was a transaction between the complainant and the accused in respect of the site. The consideration amount was rs. 2,30,000/ -. The accused has returned the cheque amount in instalments to the complainant. The trial Court has carefully examined Exhibit D-l and its contents and has arrived at a conclusion that there was no loan transaction between the complainant and the accused. ( 10. ) THERE is positive evidence to the effect that there was transaction between the complainant and the accused in connection with the settlement of a site. It is the case of the complainant that the accused borrowed the loan. From the evidence and the material placed on record, it is clear that the transaction between the accused and the complainant pertains to settlement of site. Therefore, the case of the complainant that the accused borrowed the loan is unbelievable and the very genesis of the case of the complainant creates a doubt. The case of the defence is discharge of loan by the accused. This discharge of loan is disputed by the complainant. It is not clear from the evidence adduced by both the parties whether the cheque was issued in connection with the loan or site transaction. The complainant failed to establish his case in an unequivocal terms that there was a legally enforceable debt or liability. Taking into account all aspects of the case, in my view, the finding recorded by the trial Court is sound and proper. In my view, no ground is made out to interfere with the impugned judgment. In view of the above discussion, I pass the following: order this Criminal Appeal is dismissed.