JUDGMENT : Mr. Harun Ul Rashid, J. Appellant is the complainant in C.C.No.765/2006 on the file of the Judicial Magistrate of the First Class-I, Thodupuzha. The complaint was instituted alleging offence punishable under Section 138 of the Negotiable Instruments Act. The court below by the impugned judgment dated 19/12/2007 found that the accused is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and he was acquitted under Section 255(1) Cr.P.C. The parties are hereinafter referred to as the complainant and accused as arrayed in the complaint. 2. The case of the complainant is that the accused borrowed Rs. 2 lakhs from him for one month. When he demanded the money, the accused came to his residence on 4/7/2005 and issued Ext.P1 cheque. When the cheque was presented for encashment, it was dishonoured due to "funds insufficient". Memo issued by the Canara Bank, Thodupuzha Branch is marked as Ext.P2 and the memo dated 13/7/2005 of the Idukki District Co-operative Bank is marked as Ext.P3. The complainant issued Ext.P4 notice to the accused intimating dishonour of the cheque on 18/7/2005. Exts.P5 and P6 are the postal receipts and acknowledgement card respectively. Accused received notice on 22/7/2005. Complainant was examined as PW1 and Exts.P1 to P7 were produced. On the side of the defence DW1 was examined and Exts. D1 and D2 receipts were produced. In 313 examination the accused stated that he was a subscriber of a chitty for a sala of Rs. 50,000/- conducted in 2003-2004 by the complainant and that the said amount with interest was repaid. It is also stated that at the time of lending Rs. 50,000/- complainant obtained two blank cheques and a blank stamp paper worth Rs. 50/-. It is also stated that the complainant did not arrange chitty amount as promised, that there was some dispute, and that the complainant filled one of the cheques and filed this case. Complainant was recalled for further cross examination, in the light of the said statement of the accused. He produced Ext.P7 chitty register. During the course of further cross examination the complainant testified that the accused was a subscriber of a chitty started on 3/6/2004, that the period of chitty is 40 months, that he made remittance for ten instalments and that last remittance was on 7/3/2005. 3. He produced Ext.P7 chitty register. During the course of further cross examination the complainant testified that the accused was a subscriber of a chitty started on 3/6/2004, that the period of chitty is 40 months, that he made remittance for ten instalments and that last remittance was on 7/3/2005. 3. The learned Magistrate after appreciating the evidence on record, the evidence of DW1 was examined. Admittedly, he is a friend of the accused. He deposed that there are two other cases pending against him. He testified that he was also a subscriber of a chitty conducted by the complainant, that at his request the complainant paid Rs. 37,500/- as the price amount and he obtained blank cheque and blank stamp paper. He also testified that when he remitted the entire instalment, the cheque and stamp paper were returned. He further testified that the complainant gave Rs. 50,000/- to the accused on obtaining two cheques and one blank stamp paper. In cross examination the accused admitted that he and the accused are office bearers of the congress party and that they are known to each other closely. On a reading of an oral testimony of DW1 it is clear that his testimony does not expire confidence. Relying on his testimony the Court below held that the conduct of the complainant in lending Rs. 2 lakhs without any stipulation for paying interest and without obtaining any document at the time of borrowal, cannot be believed. Another reason stated by the Trial Court is that it is unbelievable that the complainant paid Rs. 2 lakhs to a person who is unable to pay even small amount of chitty instalments. The learned Magistrate found that at the time of lending Rs. 2 lakhs the chitty instalment was in default for three months. In the circumstances, the learned Magistrate observed that the complainant will not lend Rs. 2 lakhs to such a person without any document, who defaulted payment of chitty instalments. The first sentence in the complaint is that the complainant and the accused are friends. The said fact is not controverted while the complainant was examined. If they are friends, it cannot be ruled out that the complainant will not lend money to his friend without obtaining supporting documents. 4. The case of the accused is that he borrowed only Rs. 50,000/- from the complainant and he paid Rs. 58,000/-. The said fact is not controverted while the complainant was examined. If they are friends, it cannot be ruled out that the complainant will not lend money to his friend without obtaining supporting documents. 4. The case of the accused is that he borrowed only Rs. 50,000/- from the complainant and he paid Rs. 58,000/-. He has not adduced any evidence to show that there was such a transaction and that the complainant had demanded blank cheques and stamp paper. The accused has no case that he had lodged complaint for the return of blank cheque and stamp paper. The Court below on analysing the evidence held that there is a suspicion regarding the payment of consideration of the cheque and believed the accused who explained the circumstances under which Ext. P1 cheque came to the hands of the complainant. 313 statement without any supporting evidence is not acceptable in the facts and circumstances of the case. 5. The Court below did not examine the scope of Sections 118 and 139 of the Negotiable Instruments Act. More over, it is seen that after acknowledging the statutory notice issued informing him of the dishonour of Exts. P1 cheque demanding the sum covered thereunder, the accused did not even respond by a reply, if not with payment. The issue of a notice on dishonour of the cheque to the drawer is not an empty formality, but, a statutory requirement to be complied with within the time limit from the date of intimation of dishonour, by payee or holder in due course, to enable him to file a complaint against the drawer under Section 138 of the NI Act. No tenable explanation was offered by the accused as to why no reply was sent to the complainant if at all he has a case that he had no personal liability to be discharge to the complainant. The defence of the accused was belatedly taken during trial without any merit whatsoever, to wriggle out of the penal consequences arising from the dishonoured cheque. Though the accused had got a case that the cheque was issued in blank form with signature alone, he did not make any attempt to prove that the other entries in the instrument were written by a different hand. Though the accused had got a case that the cheque was issued in blank form with signature alone, he did not make any attempt to prove that the other entries in the instrument were written by a different hand. The denial of execution and transaction canvassed by him belatedly in trial, necessarily, has to be appreciated in the totality of the facts and circumstances presented in the case. The evidence of the complainant where it is found to be credible and trustworthy is sufficient to conclude that a cheque was duly executed by the maker towards discharge of a debt or liability towards him. Whether corroboration to his evidence on that disputed question is required or not has to be looked into with reference to the facts proved and not solely on the basis that a defence raised challenging the execution. It is settled law that presumption under Section 139 is in the nature of a reputable presumption and it is open to the accused to raise a defence wherein existence of a legally enforceable debt or liability can be contested. It was also well settled that there is an initial presumption which favours the complainant. The Apex Court in (Rangappa v. Mohan 2010 KHC 4325 : 2010 (2) KIT 682 (SC) : AIR 2010 SC 1898 : 2010 (5) SCALE 340 : 2010 Cri.L.J. 2871 : 2010 (11) SCC 441 ) held that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities and therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. In the decision in (Drum Manufacturing Company v. Amin Chand Pyarelal, 1999 KHC 467 : 1999 (3) SCC 35 : 1999 (2) KLT SN 24 : AIR 1999 SC 1008 : 1999 AIR SCW 636 : JT 1999 (1) SC 576 : 1999 (1) SCALE 521 ) the Apex Court held: "The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It was also held that the bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff." 6. In this case the accused has no case that Ext. P1 cheque was not signed by him. Under Section 118 of the Negotiable Instruments Act, unless the contrary was proved, it is to be presumed that the negotiable instruments (including a cheque) had been made or drawn for consideration. Section 139 of the Act postulates that the Court has to presume unless the contrary is proved that the holder of the cheque received, the cheque for discharge in whole or in part, of a debt or liability. The judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonoured cheque is on the complainant. In the facts and circumstances discussed in detail, this Court is of the view that the matter requires reconsideration. In the result, the appeal is allowed. The impugned judgment is set aside. The case is remanded to the Court below for consideration afresh untrammelled by any of the observations made above. The trial of the case was already over and therefore, the Court below shall expedite the hearing of the case and dispose of the same as expeditiously as possible, at any rate, within a period of four months from today. Transmit the records immediately.