JUDGMENT : The appellant - original complainant has filed this appeal under Section 378(4) of the Code of Criminal Procedure and challenged the impugned judgment and order of acquittal passed by learned Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara, on 14.5.2010 in Criminal Case No. 14285 of 2007 acquitting the respondent-accused for the offence under Section 138 of the Negotiable Instruments Act ("the Act" for short). 2. According to the appellant, respondent was his friend as both of them were serving in Indian Penal Code-L. On account of friendship, the respondent used to obtain hand loan from time to time from him and used to return the amount so obtained. The respondent was in need of finance and therefor contacted him on 18.10.2006 and demanded Rs. 2,55,000/- as hand loan. He, with a view to help the respondent, gave Rs. 2,55,000/- in cash on 18.10.2006 to the respondent who received the amount and gave assurance that he would repay the amount within six to seven months. The respondent gave cheque No. 023921 drawn on Panchmahal Vadodara Gramin Bank dated 8.5.2007 for Rs. 2,55,000/- and assured that the cheque would be cleared. The cheque was presented to the Bank on 11.6.2007 but the same returned with endorsement "account closed" on 12.6.2007. Therefore, he gave notice on 21.6.2007 to the respondent. The notice was sent by registered post Acknowledgement Due (RPAD) and under postal certificate. The notice sent by RPAD was returned with endorsement "refused". However, the notice sent by under postal certificate has been received by the respondent but neither reply is filed nor amount claimed in the notice has been paid. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Chief Judicial Magistrate, First Class, Vadodara and it was registered as criminal case No. 14285 of 2007. 3. Pursuant to the service of summons, the respondent appeared in the Court and denied having committed the offence and claimed to be tried and therefore the complainant adduced evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence were explained to him. The respondent in his further statement recorded under Section 313 of the Code of Criminal Procedure, 1973, stated that no amount has been paid to him and payment of Rs. 2,55,000/- is fabricated. On completion of recording of evidence, incriminating circumstances appearing in the evidence were explained to him. The respondent in his further statement recorded under Section 313 of the Code of Criminal Procedure, 1973, stated that no amount has been paid to him and payment of Rs. 2,55,000/- is fabricated. He has further explained that his cheque book and passbook remained with the complainant who had helped him in opening account in the Bank and had kept his signed cheque book and passbook. The accused also examined a witness in support of his defence. 4. After hearing learned advocates for the parties, the trial Court by the impugned judgment acquitted the respondent. Being aggrieved by the said decision, the complainant has preferred this appeal. 5. I have heard learned advocate Mr. Shah for the appellant and learned advocate Mr. Dave for the respondent at length and in great detail. I have also perused the impugned judgment and record and proceedings of the trial Court. 6. Learned advocate Mr. Shah submitted that the complainant has produced sufficient evidence to indicate that the amount was advanced to the respondent and pursuant to the said debt, the respondent had issued a cheque. He also submitted that the cheque was returned by the bank with the endorsement "account closed" and the notice served to the respondent was not accepted by him as it returned with endorsement "refused". Therefore, the appellant has discharged his burden to prove his case. He submitted that the accused led no evidence to prove his defence as he has not entered witness box to disprove the case of the complainant. He further submitted that under Sections 138 and 139 of the Act there is presumption that the accused charged of an offence has to prove his defence that the cheque was not given against the debt. However, the respondent has not adduced any evidence in support of his defence and thereby the burden is not discharged. Therefore, the trial Court committed error in acquitting the respondent. He has relied on the decisions of the Hon'ble Supreme Court in the cases of K.N. Beena v. Muniyappan Reported in AIR 2001 Supreme Court 2895, Hiten P. Dalal v. Bratindranath Banerjee reported in AIR 2001 Supreme Court 3897, Goa Plast (P) Ltd. Vs. Chico Ursula D'Souza reported in AIR 2004 Supreme Court 408. 7. Learned advocate Mr. He has relied on the decisions of the Hon'ble Supreme Court in the cases of K.N. Beena v. Muniyappan Reported in AIR 2001 Supreme Court 2895, Hiten P. Dalal v. Bratindranath Banerjee reported in AIR 2001 Supreme Court 3897, Goa Plast (P) Ltd. Vs. Chico Ursula D'Souza reported in AIR 2004 Supreme Court 408. 7. Learned advocate Mr. Dave for the respondent submitted that the appellant had helped the respondent in opening the account and he kept with him cheque book and passbook of the bank. He further submitted that the appellant misused the signed cheque as no amount as claimed is advanced to the respondent. He further submitted that the respondent had in the cross-examination of the appellant/complainant brought forward certain material which renders the appellant's case of hand loan improbable and no other evidence was adduced to prove that hand loan was advanced to the respondent. Therefore, the trial Court was justified in acquitting the respondent. Hence no interference is warranted in the impugned judgment. 8. It appears from the allegations made in the complaint that the respondent made a request on 18.10.2006 for hand loan of Rs. 2,55,000/- and on the same day the appellant gave amount in cash. There is no dispute that no writing was passed in respect of the loan amount allegedly obtained by the respondent. In order to support the allegations made in the complaint, the appellant has examined himself at Exh. 7. The appellant in his affidavit of examination-in-chief reiterated the allegations made in the complaint. In the cross-examination by the respondent, the witness has admitted that he had friendship with the respondent. He has also admitted that he has paid amount in cash and that he pays income-tax but has not made mention of hand loan in the income-tax return. He has also deposed that he is not aware that any amount above Rs. 20,000/- is required to be reflected in the income-tax return. The witness has further deposed that he had given hand loan amount after making arrangement at his house. The witness has also admitted that income and expenditure are required to be reflected in the income-tax return. The witness has also admitted that he went to collect the cheque book of the respondent from the bank and had signed in the bank. The witness has also admitted that he had introduced the respondent in opening the bank account. The witness has also admitted that income and expenditure are required to be reflected in the income-tax return. The witness has also admitted that he went to collect the cheque book of the respondent from the bank and had signed in the bank. The witness has also admitted that he had introduced the respondent in opening the bank account. 9. On examination of oral evidence of this witness it emerges that the complainant and the respondent were friends as they were serving in Indian Penal Code-L. It also emerges that the complainant was an income-tax payer and amount of Rs. 2,55,000/- as hand loan was paid in cash to the respondent but no receipt for the same was obtained. The amount so paid was not reflected in the income-tax return. The evidence further indicates that the respondent made the request for hand loan on 18.10.2006 and the amount was given on the same day in cash. The respondent has challenged receipt of hand loan of cash amount of Rs. 2,55,000/-. In view of the fact that the appellant was serving and had allegedly advanced hand loan on the same day of demand in cash, it is difficult to believe that a salaried person would keep such a large amount at his house and that too would advance without obtaining a receipt. The evidence of this witness also indicates that he is well aware about the fact that income and expenditure are required to be reflected in the income-tax return. However, the appellant has not shown hand loan amount in the income-tax return. This evidence raises a serious doubt about the appellant's case that amount of Rs. 2,55,000/- in cash was advanced to the respondent. 10. The respondent has also raised defence that the appellant has misused signed cheques. The cross-examination of this witness indicates that the appellant had obtained cheque book of the respondent from the bank. The evidence of defence witness Arvindkumar Amrutlal Joshi Exh. 41 examined by the respondent indicates that the appellant signed cheque book register Exh. 43 and obtained cheque book issued in the name of the respondent. In view of above evidence, the respondent has raised a probable defence that the appellant misused the cheque from the respondent. 11. Learned advocate Mr. Shah submitted that the respondent operated the account and it is reflected in account statement Exh. 42 that cash amount of Rs. 43 and obtained cheque book issued in the name of the respondent. In view of above evidence, the respondent has raised a probable defence that the appellant misused the cheque from the respondent. 11. Learned advocate Mr. Shah submitted that the respondent operated the account and it is reflected in account statement Exh. 42 that cash amount of Rs. 3,600/- was withdrawn on 24.5.2007 by cheque No. 023923 whereas the cheque in question is cheque No. 023921. Therefore it cannot be said that the appellant was in custody of the entire cheque book and the cheque in question was misused. It appears from extract Exh. 42 that there is an entry of transaction of Rs. 3,600/- on 25.4.2007 by cheque No. 023923 but it does not indicate that such transaction was made by the respondent personally. It only indicates cash transaction. As observed earlier, according to the respondent, the appellant had obtained the cheque book and had misused the cheque in question. On perusal of the cheque in question it appears that on the reverse of the cheque there is signature of the drawer i.e. the respondent. It is an account payee cheque. It is a practice in banking transaction that in case of cash withdrawal by the drawer of the cheque, he is required to sign on the reverse of the cheque. In view of the fact that the drawer has put his signature on the reverse of the cheque also, possibility of misuse of signed cheque cannot be ruled out. 12. The appellant has failed to prove that the cheque in question was given by the respondent against the discharge of debt. In view of the fact that the respondent had in cross-examination of the witness challenged the receipt of amount in cash and thereby the respondent was able to raise a probable defence which creates doubts about the existence of a legally enforceable debt. It is settled position that when an accused has to rebut the presumption under Section 139 of the Act, the standard of proof for doing so is that of "preponderance of probabilities". In the fact of this case, the respondent has been able to rebut the presumption under Section 139 of the Act as the appellant did not adduce convincing evidence to prove that the amount was advanced to the respondent as claimed in the complaint. 13. In the fact of this case, the respondent has been able to rebut the presumption under Section 139 of the Act as the appellant did not adduce convincing evidence to prove that the amount was advanced to the respondent as claimed in the complaint. 13. In view of above, in my view, the appellant failed to prove that he advanced hand loan to the respondent as claimed and the cheque in question was given towards discharge of the debt. Learned advocate Mr. Shah has relied on the decisions of the Hon'ble Apex Court in the matters of Goa Plast (P) Ltd. Vs. Chico Ursula D'Souza (supra) and Hiten P. Dalal v. Bratindranath Banerjee (supra) with regard to presumption under Section 139 of the Act. There cannot be any dispute with regard to the proposition laid down in these decisions. However, in the facts of the present case it clearly emerges from the record that the appellant did not produce cogent and convincing evidence with regard to existing debt and the respondent was able to rebut presumption under Section 139 of the Act. 14. Learned advocate Mr. Shah has also relied on the decision of the Hon'ble Supreme Court in the matter of K.N. Beena v. Muniyappan (supra). In the said decision the Hon'ble Supreme Court as held that the burden of proving that cheque had not been issued for debt is on the accused and only denial/averment in the affidavit is not sufficient to shift the burden of prove on the complainant. In the present case the cross-examination of the complainant clearly indicates that except bare words there is no evidence to support the hand loan. On the contrary, it creates a doubt about advance of money. The respondent has by adducing evidence was able to rebut the presumption and was able to raise probable defence. Therefore, this decision is not applicable. 15. In the decision of the Hon'ble Supreme Court in the matter of Rangappa v. Mohan reported in AIR 2010 Supreme Court 1898 with regard to presumption under Section 138 of the Act. In the said decision the Hon'ble Supreme Court has held that if the accused is able to raise probable defence which creates doubt about existence of legally enforceable debt or liability, the prosecution can fail. In the said decision the Hon'ble Supreme Court has held that if the accused is able to raise probable defence which creates doubt about existence of legally enforceable debt or liability, the prosecution can fail. In the present case, as observed earlier, the respondent has been able to raise a probable defence that he did not receive the amount. Therefore, this decision does not assist the appellant but helps the respondent. 16. In the decision in the case of P. Venugopal v. Madan P. Sarathi reported in 2008 AIR SCW 7702 the Hon'ble Apex Court has held that presumption raised does not extend to the extent that the cheque was issued for the discharge of any debt or liability which is required to be proved by the complainant. In view of this proposition laid down by the Hon'ble Apex Court, the appellant was required to prove that the cheque was issued for discharge of the debt. However, he has failed to discharge the burden. Therefore, the trial Court was justified in passing the impugned order. 17. It is also submitted that as the respondent did not reply to the notice, he is guilty of the offence. The record indicates that notice was first given to the respondent but he did not accept the same. The provision of notice in Section 138 of the Act is only for the purpose of bringing to the notice of the drawer of the cheque regarding dishonour of the cheque. Therefore, respondent cannot be saddled with criminal liability, simply because reply to the notice of demand is not given. Therefore, the appellant cannot claim any benefit of non-reply to the notice by the respondent. 18. In view of above, learned advocate Mr. Shah has failed to point out any infirmity in the impugned judgment and therefore the appeal is required to be dismissed. 19. In the result, the appeal is dismissed. Appeal dismissed.