JUDGMENT : Paramjeet Singh, J. The instant application has been filed under Section 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 30.05.2014 passed by the Additional Chief Judicial Magistrate-cum-Presiding Officer, Evening Court, Pathankot whereby complaint filed by the applicant under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') has been dismissed and respondent has been acquitted of the notice of accusation issued against him. 2. Brief facts of the case are that a complaint was filed by the applicant-complainant under Section 138 of the Act with the averments that in discharge of liability towards the complainant, respondent issued cheque bearing No. 514266 dated 02.04.2013 for Rs. 35,000/- in favour of the complainant, but the said cheque was dishonoured on presentation by the complainant in his bank. The same was returned to the complainant by his banker with memo dated 28.06.2003 with the remark "Account closed". He issued legal notice dated 05.07.2013 under Section 138 of the Act but to no effect, therefore, the complaint was filed. 3. On the basis of preliminary evidence, notice of accusation for commission of an offence punishable under Section 138 of the Act was served upon the accused-respondent to which he pleaded "not guilty" and claimed trial. 4. The complainant, in order to prove his case, examined himself as C.W. 1. Thereafter, statement of the respondent-accused under Section 313 Cr.P.C. was recorded wherein he pleaded complete innocence and false implication. 5. The trial Court, after appreciating the evidence, acquitted the respondent of the notice of accusation, served upon him, vide impugned judgment dated 30.05.2014. Hence, this application for grant of leave to appeal. 6. I have heard learned counsel for the applicant and gone through the impugned judgment. 7. The trial Court, after appreciating the evidence on record, observed as under:- "11. Section 138 of the Act has three ingredients, viz:-- (i) That there is a legally enforceable debt; (ii) That the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) That the cheque so issue had been returned due to insufficiency of funds. 12. The proviso appended to the said Section provides for compliance of legal requirements before a complaint petition can be acted upon by a Court of law. 12. The proviso appended to the said Section provides for compliance of legal requirements before a complaint petition can be acted upon by a Court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt of other liability. 13. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstance of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence, the existence of negative evidence is neither possible nor contemplated. 14. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or then non existence was so probable that a prudent man would under the circumstance of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments, in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. 15. The presumption that accused issued cheque in dispute of his liability can be raised in favour of complainant only if he establishes that he received the cheque from the accused. Heavy burden lies on the complainant to show that he had required funds for having advanced the money and that the issuance of cheque in support of said payment advanced was there and accused was bound to make the payment as had been agreed while issuing the cheque to the complainant. 16. The absence of any details of the date, month and year when the alleged loan was advanced and also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance. 17. In his cross-examination the complainant has deposed that accused borrowed the money from him in December, 2012 and he took Rs. 35,000/- and said amount was given in cash and same was given after withdrawing from the bank. He further deposed that accused handed over the cheque on 2.4.2013. He also admitted that notice neither bears his signatures nor his counsel's signatures. 18. No evidence has been brought on record by complainant that he had given Rs. 35,000/- after withdrawing the same from the bank nor there is any document that the said amount was given to the accused on interest. He also admitted that notice neither bears his signatures nor his counsel's signatures. 18. No evidence has been brought on record by complainant that he had given Rs. 35,000/- after withdrawing the same from the bank nor there is any document that the said amount was given to the accused on interest. It is highly unbelievable that a person would advance such a big amount without getting any document executed or security and that too without charging any interest. 19. In John K. John Vs. Tom Varghese and Another, (2008) CriLJ 434 Hon'ble Supreme Court has observed that the conduct of the complainant should be that of a prudent man and in para No. 10 it has been observed: "Why no instrument was executed although huge some of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document has been executed even no interest had been charged." 20. The prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. 21. The Act raises two presumptions, firstly, in regard to the passing of consideration as contained in Section 118(a) of therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt of other liability. Presumptions both under Sections 118(a) and 139 are rebuttable in nature. Having regard to the definition of terms 'proved' and 'disproved' as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the persecution vis-a-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision. 22. The Court is entitled to take notice of the conduct of the parties, the conduct of the complainant was not that of a prudent man. 22. The Court is entitled to take notice of the conduct of the parties, the conduct of the complainant was not that of a prudent man. Why no instrument was executed when the money was allegedly paid to the accused is a relevant question which could be posed in the matter. Not only no document had been executed, even there is no averment that any interest was to be charged on the said amount. The complainant was under an obligation to prove the existence of the debt by convincing evidence. Apart from his oral evidence, the complainant has not placed an other evidence to prove the existence of legally enforceable debt or liability. 23. Having regard to the evidence on record, this Court is of the considered view that the complainant has neither established nor proved the existence of legally enforceable debt against the accused. It is only after satisfying that the complainant has proved existence of legally enforceable debt of liability, the Court could have proceeded to draw presumption under Section 139of the Act and thereafter, find out as to whether or not the accused has rebutted the said presumption. 24. Further, notice issued by the complainant proved as Ex. C3 has neither been signed by him nor his counsel. In case the notice is not signed, neither its veracity, nor its authenticity was vouched for. Authenticity of information can be confirmed only by sender by signing the notice. It is essential requirement of law that notice is to be signed by sender. Since the notice proved on record as Ex. C-3 is not a valid notice, hence, essential requirement under Section 138 of the Act has also not been fulfilled by the complainant. In case notice is not signed by sender the receiver has no means of knowing whether the facts mentioned in the notice are true or false are real or imaginary. 25. In the light of discussion made above, it is held that the complainant has utterly failed to prove the existence of legally enforceable debt against the accused or that essential requirement under Section 138 of the Act has been fulfilled. Therefore, the question of drawing presumption under Section 139 of the Act does not arise and this Court is of the considered view that the complainant has failed to prove his case. The complaint is dismissed and the accused is acquitted. Therefore, the question of drawing presumption under Section 139 of the Act does not arise and this Court is of the considered view that the complainant has failed to prove his case. The complaint is dismissed and the accused is acquitted. His bail bonds and surety bonds stand discharged. File be consigned to the record-room." 8. The Hon'ble Supreme Court in Muralidhar @ Gidda and Another Vs. State of Karnataka, AIR 2014 SC 2200 has held as under: "10. Lord Russell in Sheo Swarup and Others vs. The King-Emperor, AIR 1934 227 (Privy Council) highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years. 11. As early as in 1952, this Court in Surajpal Singh and Others Vs. The State, AIR 1952 SC 52 , while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs. The State, Tulsiram Kanu Vs. The State, , AIR 1954 SC 1 , Madan Mohan Singh Vs. State of Uttar Pradesh, AIR 1954 SC 637 , Atley Vs. State of Uttar Pradesh, AIR 1955 SC 807 , Aher Raja Khima Vs. The State, Tulsiram Kanu Vs. The State, , AIR 1954 SC 1 , Madan Mohan Singh Vs. State of Uttar Pradesh, AIR 1954 SC 637 , Atley Vs. State of Uttar Pradesh, AIR 1955 SC 807 , Aher Raja Khima Vs. The State of Saurashtra, AIR 1956 SC 217 , Balbir Singh Vs. State of Punjab, AIR 1957 SC 216 , M.G. Agarwal Vs. State of Maharashtra, (1963) 2 SCR 405 , Noor Khan Vs. State of Rajasthan, AIR 1964 SC 286 , Khedu Mohton and Others Vs. State of Bihar, : (1970) 1 SCC(Cri) 479 : (1971) 1 SCR 839 , Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, (1973) 2 SCC 793 , Lekha Yadav Vs. State of Bihar, (1973) 2 SCC 424 , Khem Karan and Others Vs. The State of U.P. and Another, (1974) 4 SCC 603 , Bishan Singh, Gurdial Singh, Hardial Singh, Surjit Singh, Harbans Singh and Hazur Singh Vs. The State of Punjab, (1974) 3 SCC 288 , Umedbhai Jadavbhai Vs. The State of Gujarat, (1978) 1 SCC 228 , K. Gopal Reddy Vs. State of Andhra Pradesh, (1979) 1 SCC 355 , Tota Singh and Another Vs. State of Punjab, (1987) 2 SCC 529 , Ram Kumar Vs. State of Haryana, (1995) 1 SCC 248, Madan Lal Vs. State of Jammu & Kashmir, : (1997) 3 SCR 337 Supp, Sambasivan and Others Vs. State of Kerala, (1998) 5 SCC 412 , Bhagwan Singh and Others Vs. State of Madhya Pradesh, (2002) 4 SCC 85 , Harijana Thirupala and Others Vs. Public Prosecutor, High Court of A.P., Hyderabad, (2002) 6 SCC 470 , C. Antony Vs. K.G. Raghavan Nair, (2003) 1 SCC 1 , State of Karnataka Vs. K. Gopalakrishna, (2005) 9 SCC 291 , State of Goa Vs. Sanjay Thakran and Another, (2007) 3 SCC 755 and Chandrappa and Others Vs. State of Karnataka, (2007) 4 SCC 415 . It is not necessary to deal with these cases individually. K.G. Raghavan Nair, (2003) 1 SCC 1 , State of Karnataka Vs. K. Gopalakrishna, (2005) 9 SCC 291 , State of Goa Vs. Sanjay Thakran and Another, (2007) 3 SCC 755 and Chandrappa and Others Vs. State of Karnataka, (2007) 4 SCC 415 . It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court." 9. Learned counsel for the applicant has failed to show any error in law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. There is also a delay of 138 days in filing the instant application. No cogent reasons have been mentioned in the application for condoning the delay. 10. Learned counsel for the applicant has failed to show any error in law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. There is also a delay of 138 days in filing the instant application. No cogent reasons have been mentioned in the application for condoning the delay. 10. As such, application for leave to appeal is dismissed on merit as well as on account of delay.