Judgment : This revision is directed against the judgment/order dated 19/08/2009 of the learned Additional sessions Judge, Mapusa by which the learned Additional Sessions Judge has upheld the judgment/order dated 12/03/2009 of the learned JMFC, Bicholim, convicting and sentencing the petitioner under Section 138 of the Negotiable Instruments Act, 1881. 2. The complainant is a Co-operative Society. The husband of the accused was a Secretary of the said Society during the tenure of one Patel, who was its Chairman. The case of the complainant is that the accused gave a cheque to the complainant dated 27/07/2005 for Rs.1 lac towards part repayment of the amount due by way of liability towards the complainant in the account no.28 of the said Dnyaneshwar Parob and when the complainant deposited the said cheque in the Goa State Co-operative Bank Ltd., Bicholim, it was returned dishonoured on the ground that the funds were insufficient. The complainant, therefore, sent a notice dated 4/01/2006, to the accused to make the payment within 15 days. The accused replied to the said notice, inter alia, stating therein that there was no loan account bearing no.28 in the name of her husband Dnyaneshwar Parob, with the complainant. It was also stated that cheque in question was deposited with the complainant as security/guarantee as the husband of the accused was the Secretary of the complainant-society and there was no transaction between the accused and the complainant and so also between the husband of the accused with the complainant. 3. The complainant examined their Chairman Shri Tulsidas Parab in support of the complaint. The complainant also examined the Manager of the Bank of the accused, to say that the cheque was dishonoured on account of the insufficient funds in the account of the accused. The accused also gave her evidence and in her evidence categorically stated that her husband was working for the complainant-society for about 9 years, prior to two years. She also categorically stated that she had not obtained any loan from the complainant nor had stood as a surety for the accused at any time. 4. The learned trial Court in her judgment dated 12/03/2009 observed as follows; “9. No loan documents have been produced by the complainant to prove the alleged loan transaction of the husband of the accused with the complainant society. 4. The learned trial Court in her judgment dated 12/03/2009 observed as follows; “9. No loan documents have been produced by the complainant to prove the alleged loan transaction of the husband of the accused with the complainant society. However, in the cross it is stated by PW1 that Dyaneshwar Parob i.e. the husband of accused obtained loan of Rs.50,000/- from the complainant society and that his parents as well as the accused were the guarantors to the said loan transaction. As stated by PW1, said loan was repayable for (sic. after) a period of five years. There is no documentary evidence in support of such testimony of PW1. Further according to PW1, the complainant society had sent a notice to the accused in respect of the said loan, she being one of the guarantor. But the said notice is also not produced by PW1.” [Note : The notice was in fact produced] 5. The learned Additional Sessions Judge also observed that; “In this context, learned trial Judge is right in observing that no documentary evidence is produced on record by PW1 to substantiate the above stand of complainant society but it is material to note that in his cross-examination, PW1 had made it clear that the in-laws of the accused as well as the accused are the guarantors to the loan of Rs.50,000/- obtained by the husband of the accused form the complainant society.” The learned Additional Judge further noted that; “It may be mentioned here, that when PW1 showed his willingness to produce the records to show that the husband of the accused had obtained loan from the complainant society, the accused did not request the Court to direct PW1 to produce such records and therefore in the absence of such request the suggestion put to PW1 that Dyaneshwar has not obtained any loan from the society, is of no significance.” The learned Additional Sessions Judge further observed that “However, to come within the ambit of above ratio, it was for the accused to have brought on record evidence indicating that her defence was a probable defence but as pointed by me above, since the defence of the accused is inconsistent, the inference of preponderance of probabilities cannot be drawn upon such defence.” 6. At the time of hearing of this revision petition, on behalf of the accused, an effort was made to produce a certificate issued by the Assistant Registrar of Co-operative Societies to the effect that “M.T. Loan NANP No.28” is in the name of Babi Pundalik Parwar and not in the name of the accused. However, in my view, the said application as well as the said document could be safely kept aside because the number mentioned therein cannot be co-related to the alleged account of the accused i.e. no.28 without any letters being prefixed to it, as is the case with the certificate sought to be produced. Moreover, there is no explanation from the accused as to why the said certificate could not be produced either before the trial Court or the first appellate Court, as rightly pointed out, on behalf of the complainant. 7. Shri Teles, learned advocate on behalf of the accused has placed reliance on the case of Raman Finance Corporation V/s. Harmeet Singh (2009 (1) DCR 308) and submitted that since the complainant had failed to produce any document the presumption in favour of the complainant stood rebutted. Indeed in this case it was observed that the complainant had failed to produce the loan agreement and in the circumstances, presumption in favour of the complainant stood rebutted. It was not required that the accused may lead positive evidence to rebut the presumption. Presumption could be rebutted from the circumstances on record. Reference was made to the case of M.S. Narayana Menon@ Mani V/s. State of Kerala ( 2006 (6) SCC 39 ) wherein it was observed as follows; “Applying the said definitions of 'proved' or 'disapproved' to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.” 8. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.” 8. Learned Counsel has also placed reliance on the case of Sayeeda Iqbal Vakil V/s. Javed Abdul Latif Shaikh (2009 (1) DCR 622) as well as Ramakanth V/s. V.A. Rahim (2008 (1) DCR 53). In the latter case, it has been observed that the standard of proof evidently is by preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. 9. It is now well settled that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. The question as to whether the presumption is rebutted or not, must therefore, be determined keeping in view the other evidence on record. For the said purpose, stepping into the witness box by the accused is not imperative. 10. This is a case where the entire case of the complainant was based on the evidence of the complainant's witness as against that of the accused. Both the Courts below have not assigned any reason as to why a bald statement of the complainant's witness, when it could have been substantiated with documents, was preferred to the bald statement given by the accused, which could not be substantiated. Witnesses are entitled to the same degree of credibility whether of the complainant or of the accused. The accused in this case by raising the plea in the reply filed to the statutory notice and by giving her own evidence had sufficiently proved that her defence was probable. In other words, the accused had discharged the initial burden which was on her that consideration was improbable. The accused in this case by raising the plea in the reply filed to the statutory notice and by giving her own evidence had sufficiently proved that her defence was probable. In other words, the accused had discharged the initial burden which was on her that consideration was improbable. The complainant neither in the notice, nor in the complaint nor in the affidavit in evidence filed on behalf of the complainant had disclosed that the liability was towards a loan taken of Rs.50,000/-by the husband of the accused, and if that was so, on which date it was taken or the terms of its disbursement or whether any document of guarantee was executed by the accused were also not mentioned. It is only in the cross-examination of the complainant's witness that he stated that the husband of the accused had taken a loan from the complainant-society in the sum of Rs.50,000/-, even without specifying the date on which it was taken or the terms on which it was sanctioned. The learned trial Court also observed that the complainant's witness had admitted that the accused had not given any undertaking in writing to the complainant-society that she will repay the loan of her husband Dnyaneshwar Parob and further observed that otherwise there was consistency in the testimony of the said complainant's witness. One fails to understand as to what consistency there could have been in the complainant's witness when complainant had not produced single document in support of their case, particularly, the loan or guarantee agreements. The learned first appellate Court observed that the accused had not produced any documentary evidence in support of her plea. It is again difficult to understand what documentary evidence she could have produced when the complainant who had documents had not produced any. The learned first appellate Court observed that the complainant's witness had shown his willingness to produce the documents to show that the husband of the accused had obtained the loan from the complainant but the accused did not request the Court to direct him to produce the said documents. Here again it may be observed that one does not know what prevented the complainant to produce the documents in case he was willing to produce the same. It was no duty of the accused to have asked the Court to direct the complainant to produce the records of the loan transaction. Here again it may be observed that one does not know what prevented the complainant to produce the documents in case he was willing to produce the same. It was no duty of the accused to have asked the Court to direct the complainant to produce the records of the loan transaction. The accused with her own evidence had clearly established by preponderance of probability that the subject cheque was given towards the security at the time when her husband was appointed as Secretary. That plea was certainly more probable. Complainant has not stated whether other guarantors namely the parents of the husband of the accused had also issued such cheques. It is true that the plea taken by the accused was not put in the cross-examination of the complainant's witness or for that matter repeated by the accused in his statement recorded under Section 313 of the Code as held by the learned Magistrate and as contended on behalf of the complainant but the fact remains that at the earliest opportunity i.e. in the reply to the notice, the accused had taken a very specific defence in that regard and not only that had given her evidence on oath. Therefore, it could not be said that the defence of the accused was an afterthought. One fails to understand as to how both the Courts below accepted the bald statement of the complainant's witness, in the absence of any documents produced by him, in preference to the statement on oath of the accused. 11. Considering the facts of the case, the accused had established that the plea taken by her was probable, and thus it was then for the complainant to prove, that there was indeed liability on the part of the accused towards the loan taken by her husband for the repayment of which the subject cheque was given by the accused. This the complainant failed to prove. This is a fit case to draw adverse inference against the complainant for non production of loan documents inspite of the plea taken by the accused in her reply to the notice that there was no transaction between the accused and complainant and the subject cheque was given as security. The approach of both the Courts below in appreciating the evidence produced is grossly erroneous. 12. For what is stated hereinabove, the revision is bound to succeed. The approach of both the Courts below in appreciating the evidence produced is grossly erroneous. 12. For what is stated hereinabove, the revision is bound to succeed. The impugned orders are hereby set aside and the accused is hereby acquitted under Section 138 of the Negotiable Instruments Act, 1881.