Judgment : Heard both sides. Aggrieved by the acquittal of the present respondent No.1 from the offences punishable under section 138 of Negotiable Instruments Act, the present appeal is preferred by the original complainant. 2. The complainant's case in short is as under:- That, both the parties are contractor by profession and therefore, they are acquainted with each other. Out of the said acquaintance, the respondent has made demand of Rs. 90,000/-for carrying the construction of a bridge and a school building. Accordingly, the appellant lend the said amount to him. Thereafter, when the appellant demanded repayment, the respondent passed a cheque (Exh. 24) in favour of the appellant. The said cheque was presented to the banker of the respondent within time. The same, however, returned back as the account was closed. Therefore, within the prescribed period, the notice was sent and it was served on the wife of the respondent. However, since there was no satisfaction of the amount under the cheque, the present complaint was filed within limitation. 3. The defence of the respondent in short was that both the parties were carrying construction business in partnership and the appellant used to supervise the work and also used to pay labour charges. In view of these circumstances, the respondent many a times use to keep a blank papers including the blank signed cheques with the appellant. The parties ultimately settled their account and an amount of Rs. 90,000/-remained due against the appellant. However, only to avoid the payment of the said amount, the appellant has misused the blank cheque containing the signature of the respondent. No notice was served upon the respondent before filing of the present complaint. On the misuse of the blank cheque, the present case is set up. 4. During the trial, it has come on record that the acknowledgment of receipt of the notice was purported to have been signed by one Jaishri Deshmukh who the appellant claims to be the wife of the respondent. P.W. No.2 Shivaji Desai has deposed that on 9.9.1997 he performed the duty of postman in absence of regular postman Prakash Jojare. According to him, though he is not concerned with the post department, carried the job of service of the present envelop containing notice. According to him, he handed over the said envelop to one small child at the house of the respondent. According to him, though he is not concerned with the post department, carried the job of service of the present envelop containing notice. According to him, he handed over the said envelop to one small child at the house of the respondent. According to him, the said child went in the house and obtained the signature on acknowledgment of somebody. 5. The appellant during cross examination has admitted that both of them used to take certain construction projects in partnership and he used to keep a diary and take notes in his own hand writing in the diary at Exh. 30. No statement of account was filed by the present appellant. It is the case of the appellant that he had earlier advanced a short term hand loan to the respondent of a substantial amount of Rs. 90,000/-. 6. In all these facts, the learned Judicial Magistrate, First Class concluded that the presumption that is arising due to passing of cheque of having legally enforcible liability of the respondent is rebutted and further there is no evidence of service of statutory notice. 7. Mr. B.N. Patil holding for Mr. Kolekar submits that the learned Judicial Magistrate, First Class has wrongly concluded that the presumption has been rebutted and there is no proper service of the notice. 8. On the other hand, Mr. Girish Naik-Thigle submits that from facts as cited supra would show that the presumption is rebutted in the present case, so also there was also want of service of notice. 9. Upon hearing both sides, my conclusion is that the learned Judicial Magistrate, First Class has rightly acquitted the respondent for the reasons to follow. 10. It cannot be denied that the presumption that arise out of the provision of section 138 of Negotiable Instruments Act, is a rebuttable presumption. In fact, every presumption is rebuttable and the only question may remain as to whether the Court may presume or the Court shall presume certain facts depending upon the specific provision. 11. Further, it may be noted that this being a case wherein the criminal liability is provided, the presumption can be rebutted by the accused even on preponderance of probability and he need not enter into the witness box to rebut the presumption. 12. 11. Further, it may be noted that this being a case wherein the criminal liability is provided, the presumption can be rebutted by the accused even on preponderance of probability and he need not enter into the witness box to rebut the presumption. 12. The facts on record clearly show that the appellant has no corroborative evidence to show that he had earlier advanced a short term hand loan of a substantial amount of Rs. 90,000/-to the respondent. As against his case that he has merely lent the money to the respondent, he has admitted in cross examination that in fact the parties were working together on construction projects and he used to keep a diary of noting of the development of the projects. In the circumstances, the learned Judicial Magistrate, First Class has rightly observed that the defence is probable and as such the presumption is rebutted. 13. The question, as to why the respondent has not replied the notice and made his stand clear at very first opportunity would arise only when there is the evidence that there was a regular service of notice. Again, the aid of presumption is taken by the appellant in this regard, claiming that the notice was sent on the correct address of the appellant and the same was received by somebody from his house. 14. The deposition of P.W. No.2 Shivaji Desai as highlighted supra would show that he was not authorized to carry out the duty of postman. He, on his own, on the request of regular postman, is claimed to have served the notice on somebody in the house of the respondent. This fact is, thus, sufficient to show that the presumption regarding service of notice is not at all arisen in the present case and therefore, there is no question of rebutting the presumption. 15. In view of all these facts, the appeal is dismissed.