Judgment R. Mala, J. 1. This Criminal Appeal arises out of the judgment of acquittal dated 12.10.2011 made in C.C.No.161 of 2011 on the file of the learned Chief Judicial Magistrate, Erode. 2. The appellant as a complainant preferred a private complaint under Section 138 of Negotiable Instruments Act stating that the respondent/accused borrowed a sum of Rs.1,00,000/- from the appellant/complainant on 08.06.2006 and agreed to pay back the same with interest at the rate of 24% per annum. On the same day, the respondent/accused issued a post dated cheque/Ex.P.1 dated 01.09.2008, for Rs.1,00,000/- on Indian Overseas Bank. When the post dated cheque/Ex.P.1 was presented for encashment by the appellant before Indian Overseas Bank, Erode, but it was returned as "account closed" as per return memo Ex.P.2. So the appellant/complainant on 12.09.2008 issued Ex.P.3 statutory notice to the respondent under Section 138 of Negotiable Instruments Act, which was evidenced by Acknowledgment Card/Ex.P.4. But the respondent/accused has not paid the cheque amount. Therefore, the appellant/complainant was constrained to file a private complaint against the respondent/accused under Section 138 of Negotiable Instruments Act. 3. The trial Court has taken cognizance of an offence, after recording the sworn statement and after following the procedure. Since the accused pleaded not guilty, the trial Court examined P.W.1 and Exs.P1 to P4 on the side of the appellant/complainant and on the side of the respondent/accused, D.W.1 and D.W.2 were examined and Exs.D1 to D3 were marked. The trial Court after considering the oral and documentary evidence, acquitted the accused for the offence under Section 138 of Negotiable Instruments Act. 4. Challenging the judgment of acquittal passed by the trial Court, the learned counsel for the appellant/complainant raised the following points: (a) The respondent/accused has admitted his signature in the cheque/Ex.P.1 and so the Trial Court ought to have invoked the presumption under Sections 118 and 139 of Negotiable Instruments Act. (b) Further, the son of the appellant/complainant was examined as D.W.2 and he has not support the case of the respondent/accused. But he was not treated as hostile witness. (c) The case of the defence is that he had chit transaction with the appellant's son, namely, D.W.2 and at that time, he issued a cheque/Ex.P.1 as security and that has been used to filed a complaint. That factum was not proved by the respondent/accused and that has not been considered by the Trial Court. (c) The case of the defence is that he had chit transaction with the appellant's son, namely, D.W.2 and at that time, he issued a cheque/Ex.P.1 as security and that has been used to filed a complaint. That factum was not proved by the respondent/accused and that has not been considered by the Trial Court. (d) Hence, he prayed for convicting the respondent/accused. 5. Resisting the same, the learned counsel appearing for the respondent would submit that the Deputy Manager, Indian Overseas Bank, who was examined as D.W.1 has stated that there is no transaction from 01.07.1996 to 19.04.2011 in the bank account of the respondent/accused. So, the Trial Court has rightly held that the appellant/complainant has not proved that the cheque/Ex.P.1 has been issued for discharging legally subsisting liability. He would further submits that when two views are possible, the Appellant Court should not reverse the judgment of acquittal merely because the other view was possible. When the judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non-consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified. Hence, he prayed for dismissal of the appeal. 6. Considered the rival submissions made on both sides and perused the typed set of papers. 7. The case of the appellant/complainant is that the respondent/accused has borrowed a sum of Rs.1,00,000/- on 08.06.2008 and to discharge the same, he issued a cheque/Ex.P.1 dated 01.09.2008 for Rs.1,00,000/- and when that has been presented for encashment, it has been returned as “account closed” on 04.09.2008 under Ex.P.2. Statutory notice under Section 138(b) of Negotiable Instruments Act has been issued under Ex.P.3 and acknowledgment card has been marked Ex.P.4. But, neither he paid the amount nor he sent any reply. Hence, the complaint has been filed. As per the ingredients of Section 138 of Negotiable Instruments Act, cheque has to presented for encashment within six months and if it was returned as “account closed”, notice to be issued within stipulated period and if not paid, then only cause of action arise. At this juncture, it is appropriate to incorporate Section 138 of Negotiable Instruments Act, which reads as follows: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. At this juncture, it is appropriate to incorporate Section 138 of Negotiable Instruments Act, which reads as follows: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice. to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course. of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 8. Here, the complaint has been filed in time and the signature in the cheque/Ex.P.1 has not been disputed. The case of the respondent/accused is that the cheque/Ex.P.1 has been issued to the son of P.W.1/complainant/appellant, namely, D.W.2, as security for chit transaction. So, it is the duty of the respondent/accused to prove the same. Once the signature has been admitted, the appellant/complainant is entitled to invoke the presumption under Sections 118 and 139 of Negotiable Instruments Act. The case of the respondent/accused is that the cheque/Ex.P.1 has been issued to the son of P.W.1/complainant/appellant, namely, D.W.2, as security for chit transaction. So, it is the duty of the respondent/accused to prove the same. Once the signature has been admitted, the appellant/complainant is entitled to invoke the presumption under Sections 118 and 139 of Negotiable Instruments Act. Even though it is a rebuttable presumption, the presumption to be rebutted by the respondent/accused by preponderance of probabilities and not beyond all reasonable doubt. So, by invoking Sections 118 and 139 of Negotiable Instruments Act, I am of the view that the cheque/Ex.P.1 has been issued for discharging legally subsisting liability. 9. Now, this Court has to decide whether the respondent/accused has rebutted the presumption by way of cross examination of the witnesses by preponderance of probabilities? It is pertinent to note that he has not get into the box, but it is not fatal. But, whereas he has examined the Deputy Manager, Indian Overseas Bank as D.W.1, in which bank the respondent/accused is working. D.W.1, in his deposition, has stated that the account of the respondent/accused has been closed and they are unable to obtain the particulars in respect of when the account has been closed. But, Ex.D.1/Statement of accounts of the respondent/accused for the period from 01.07.1996 to 19.04.2011 has been issued by the Bank, wherein it was stated that at that time there was no transaction. D.W.1 also given a certificate/Ex.D.2 stating that the bank account of the respondent/accused has been closed and Ex.D.3/letter has been given by the Chief Manager stating that no cheque book has been issued to the respondent/accused. But, it is pertinent to note that Statement of Account has not been issued as per Sections 3 and 4 of the Bankers Book Evidence Act. In such circumstances, no relevance can be placed. Furthermore, the evidence itself has falsified by issuance of cheque/Ex.P.1. The defence is that Ex.P.1/cheque was issued as security for chit transaction to D.W.2, but in Ex.D.3/letter given by the Chief Manager, it was stated that no cheque book has been issued . Since D.W.1 is an interested witness, those documents cannot be relied upon. Further, D.W.2 was examined and in his evidence, he has stated that he was working as Deputy Manager at New India Assurance Company and he has not conducted any chit transaction. Since D.W.1 is an interested witness, those documents cannot be relied upon. Further, D.W.2 was examined and in his evidence, he has stated that he was working as Deputy Manager at New India Assurance Company and he has not conducted any chit transaction. But, the Trial Court has taken into consideration the two lines in the cross examination of P.W.1, wherein he has stated that in the year 2002, his son, namely, D.W.2 got transferred from Erode to Coimbatore and after that, P.W.1 does not have any access with the accused and he has seen him only at the time when he filed the complaint. But it is pertinent to note that in the cross examination in the latter portion he has stated that on the date of receipt of the amount of Rs.1,00,000/-, the respondent/accused has issued a cheque/Ex.P.1 on 08.06.2006 and as soon as he received the amount, the respondent/accused paid Rs.6,000/- as three months interest. 10. Considering the chief examination and cross examination as a whole, I am of the view that the respondent/accused has not rebutted the presumption. As per the dictum of the Hon'ble Apex Court a mere suggestion in respect of the defence is not sufficient, it must be proved by preponderance of probabilities. Even though D.W.2 was examined to prove that there was chit transaction, he has not support the case of the accused but he was not treated as hostile witness. In such circumstances, the Trial Court has erroneously considered the evidence of D.W.1 and Ex.D.1 to Ex.D.3, which has been concocted for the purpose of the case since the respondent/accused is working in the same bank. Furthermore, the respondent/accused himself has admitted the issuance of cheque/Ex.P.1. So, it is his duty to prove when the cheque/Ex.P.1 has been issued and why he has not taken back the same after the alleged chit transaction has been completed. 11. In such circumstances, I am of the view that the respondent/accused has not probablised his defence by preponderance of probabilities. So, he has not rebutted the presumption under Section 139 of Negotiable Instruments Act. Hence, onus is not shifted on the complainant to prove that the cheque/Ex.P.1 has been issued for discharging legally subsisting liability. Accordingly, the judgment of the Trial Court is perverse since mis-appreciation of evidence of D.W.1 and Ex.D.1 to Ex.D.3. So, he has not rebutted the presumption under Section 139 of Negotiable Instruments Act. Hence, onus is not shifted on the complainant to prove that the cheque/Ex.P.1 has been issued for discharging legally subsisting liability. Accordingly, the judgment of the Trial Court is perverse since mis-appreciation of evidence of D.W.1 and Ex.D.1 to Ex.D.3. Hence, the appellant herein has proved that the respondent/accused is guilty under Section 138 of Negotiable Instruments Act. Therefore, the judgment of acquittal passed by the trial Court is hereby set aside. 12. In fine, This Criminal Appeal is allowed, setting aside the judgment of acquittal dated 12.10.2011 made in C.C. No.161 of 2011 on the file of the learned Chief Judicial Magistrate, Erode. The respondent/accused is found to be guilty under Section 138 of Negotiable Instruments Act and hence, convicted under Section 138 of Negotiable Instruments Act. For appearance of the respondent/accused before this Court for questioning of sentence, post this appeal on 04.03.2015.