ORDER : 1. Heard the learned counsel for the parties. 2. This revision application has been filed against the order of acquittal passed on 27.11.2013 by the learned Additional Sessions Judge-II, Jamshedpur in Criminal Appeal No. 287/2012, whereby the judgment dated 09.10.2012 passed by the learned Judicial Magistrate, 1St Class, Jamshedpur in Complaint Case No. 1377/2008, T.R. No. 505/2012, has been set aside. The learned trial court has convicted the accused (opposite party No. -2) under Section 138 of Negotiable Instruments Act, 1881 and sentenced him for six months imprisonment and further directed to pay Rs. 2,20,000/- as compensation to the petitioner. 3. The complainant of the case is the petitioner in this revision petition. 4. The complaint was filed under Section 138 of Negotiable Instruments Act as well as under Section 420 of Indian Penal Code, but admittedly, cognizance was taken only under Section 138 of Negotiable Instruments Act, 1881. Arguments of the petitioner 5. The learned counsel for the petitioner (complainant) submits that as per the case of the complainant, the accused had taken a friendly loan of Rs. 2,00,000/- which was returned to the complainant by issuing an account payee cheque dated 06.05.2008 drawn on S.B.I. Telco Branch, Jamshedpur and at the time of handing over the cheque, the accused had assured him that the cheque will be honoured on presentation on or before 22.05.2008. The further case of the complainant was that the said cheque was presented on 22.05.2008 and he received a memorandum from his banker on 28.05.2008 that the cheque was dishonoured on the ground of insufficient funds as well as on the ground that the signature occurring on the cheque materially differs with that of the signature of the accused. A legal notice dated 18.06.2008 was issued to the accused who was said to have received the same and in spite of that he neither paid the cheque amount nor responded to the legal notice. It was the case of the complainant that the accused, with fraudulent intention, had put the signature on the cheque in such a manner that it may differ with the specimen signature card of the bank. 6. The learned counsel submits that after considering the materials on record, the learned trial court convicted the accused by a well-reasoned judgment. It was the case of the complainant that the accused, with fraudulent intention, had put the signature on the cheque in such a manner that it may differ with the specimen signature card of the bank. 6. The learned counsel submits that after considering the materials on record, the learned trial court convicted the accused by a well-reasoned judgment. He submits that the learned trial court had considered the defence which was led by the accused and had based its finding on the fact that the accused has nowhere denied his signature over the cheque during the evidence produced from the side of the complainant or by himself. 7. The learned counsel for the complainant submits that when there was no denial of signature on the cheque from the side of the accused, there was clear statutory presumption in favour of the petitioner and considering this aspect of the matter, the learned trial court had rightly convicted the accused. The learned counsel for the complainant submits that the learned lower appellate court while reversing the judgment passed by the learned trial court had compared the signature instead of taking the help of handwriting expert. The learned counsel has relied upon the judgment passed by Hon’ble Supreme Court reported in (1997) 7 SCC 110 to submit that so far as the signature is concerned, it should have been left for the expert to give an opinion. He submits that the learned lower appellate court was not justified by comparing the signature by its own eyes and ultimately acquitting the accused in the appeal. He further submits that the judgment passed by the learned lower appellate court is ex-facie perverse and accordingly the same is fit to be set-aside on account of the aforesaid point. Arguments of the opposite party No.-2 8. The learned counsel appearing on behalf of accused, on the other hand, opposes the prayer and submits that it was the specific case of the complainant that the signature on the cheque “materially differed” and accordingly there is no question of any admission on the part of the accused, so far as the signature on the cheque is concerned. The learned counsel appearing on behalf of accused, on the other hand, opposes the prayer and submits that it was the specific case of the complainant that the signature on the cheque “materially differed” and accordingly there is no question of any admission on the part of the accused, so far as the signature on the cheque is concerned. He also submits that the complainant had made out a case that the accused is a businessman and for the purposes of doing his business, the accused had taken some loan from the complainant, but it has come in the evidence of accused that he is in service and working in a company namely Tata Cummins. The accused had also stated that the cheque is dated 06.05.2008 and an information was given to the bank on 08.05.2008 that the accused had lost the cheque book, pass book and certain documents on 07.05.2008 and a request was made to the bank to close the account and an information was also given to the police. The learned counsel further submits that it has been mentioned in the said communication that the cheque book was signed, that by itself does not indicate any admission on the part of the accused that the cheque which was presented before the bank was signed by the accused. 9. The learned counsel for the accused has submitted that inspite of aforesaid, the learned courts below have considered the presumption under Section 139 of Negotiable Instruments Act, 1881 and tested the defence of the accused on the principles of ‘preponderance of probabilities’. The learned lower appellate court acquitted the accused after considering the entire materials on record. He submits that the impugned judgment of the learned lower appellate court does not call for any interference as the same is a well-reasoned order and a number of reasons have been given by the learned lower appellate court for holding that the accused had rebutted the presumption under section 139 of Negotiable Instruments Act, 1881. He further submits that comparison of writing on the cheque by the court was only one of the aspects of the matter. Otherwise also there is no complete bar on the court to compare the signature/writing and in the present case, the cheque return memo itself mentioned that the signature materially differed. He further submits that comparison of writing on the cheque by the court was only one of the aspects of the matter. Otherwise also there is no complete bar on the court to compare the signature/writing and in the present case, the cheque return memo itself mentioned that the signature materially differed. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2019) 5 SCC 418 and submits that the manner in which the defence of the accused in a case under section 138 Negotiable Instruments Act, 1881 is to be considered has been elaborately dealt with in the said judgment. Findings of this Court. 10. The cheque involved in this case is dated 06.05.2008. It is the specific case of the complainant that he had given a friendly loan of Rs. 2,00,000/- for business to the accused who is a businessman and the accused had returned the same vide the said cheque. The date on which the loan was advanced by the complainant has neither been mentioned in the complaint petition nor has come during evidence. The cheque was dishonoured upon presentation on 28.05.2008 not only on the account of insufficient balance, but also on account that signature differed from the specimen signature card in the bank. The specific case of the petitioner before the learned trial court was that the signature did not tally as the accused purposely did not put his signature properly. Thus, from the side of the complainant himself, it was not in dispute that the signature on the cheque did not tally. It was the case of the complainant that the complainant had given Rs. 2 lakhs to the accused as friendly loan without interest as he was badly in need of money for investing the same in his business. 11. The defence had examined two witnesses; one was D.W.-1 who is the maternal uncle of the accused and other is the accused himself. 2 lakhs to the accused as friendly loan without interest as he was badly in need of money for investing the same in his business. 11. The defence had examined two witnesses; one was D.W.-1 who is the maternal uncle of the accused and other is the accused himself. D.W.-1 deposed that on 07.05.2008, while he was going with the accused by motorcycle and when they reached near turning of Govindpur, the accused informed him that one polythene bag containing his cheque book, bank pass book and other documents related to Tata Motor Finance fell down somewhere in the way and thereafter a hectic search was made, but the said documents could not be traced and thereafter, an information was given in the police station. The evidence of the accused was that he did not know the complainant and also stated that while he was going with D.W.-1 by motorcycle from his house to the office of Tata Motor Finance and when they reached near turning of Govindpur, he noticed that the polythene bag containing the cheque book, bank pass book and other documents relating to Tata Motor Finance fell down somewhere on the way and thereafter search was made out, but the said documents could not be traced. He has also deposed that a written information in his pen and signature was given in Govindpur Police Station on 08.05.2008 by him and he obtained a receipt of the same on its carbon copy in signature and seal of the concerned police station and on the same day, he had written information in his bank about missing of cheque and obtained its receiving in signature and seal of the bank and his account was closed. During cross-examination, he has stated that he had requested to close account in his application submitted to the bank and was informed that his account would be closed. 12. The learned trial court referred to Section 139 of the Negotiable Instruments Act, 1881 and recorded that the court has to presume that the cheque has been received by drawee for discharge of debt or other liability and such presumption is rebuttable and it is primarily the accused who has to establish that the cheque was not issued towards discharge of any debt or other liability. The learned trial court also recorded that the accused has stated during his statement under Section 313 of Cr.P.C. that neither he issued any cheque in favour of complainant nor he received any notice. The learned trial court also noticed that the complainant during his cross-examination stated that he carries on transport business in partnership and that the accused had given him the cheque at his residence and had also signed the cheque in his presence and the complainant denied the suggestion that he found the lost cheque of the accused and thereafter misused the same and thereafter he knew the accused for the first time in court. The complainant has also stated that he cannot say who had put the signature on the acknowledgement card. 13. The learned trial court while dealing with the defence of the accused recorded that there were two reasons for dishonour of cheque; one was insufficient fund and another was the signature differed. The learned trial court also took into consideration that the cheque was dishonoured on 28.05.2008 i.e. much after information was given to the bank and that the account was not closed. The learned trial court has also recorded that the other reason given over the return memo is drawer’s signature differs and the accused made this another issue in his defence and upon perusal of Ext.-B, it showed that the accused had written therein that he lost signed cheque and accordingly, the learned trial court held that the signature of the accused over the cheque cannot be stated to be in dispute. The learned trial court while deciding the case also observed that the accused has nowhere denied his signature over the cheque during the complete evidence produced from the side of complainant or himself and that it cannot be presumed from a reasonable prudent mind that a man can keep his signed blank cheque and moves here and there and even if a man does so he must be ready to face the peril and that it was duty of the accused to call upon the bank official in his defence in order to show that in which circumstances, the account was not closed and the cheque was dishonoured due to insufficient fund in spite of his instructions to close the account. 14. 14. The learned trial court rejected the plea that the accused did not know the complainant and that he had met him for the first time in the court, by holding that if the complainant did not know the accused, then how he could know the particulars and address about the accused and could also send the notice at his address. 15. So far as service of cheque bouncing notice upon the accused is concerned, the learned trial court held that the complainant had duly proved the carbon copy of notice which is addressed to the accused and the particulars given in notice on postal receipt, acknowledgement card and the complaint are identical and recorded that it is true that the complainant had stated during evidence that he cannot say who had put the signature over the acknowledgement card at the place of addressee, but at the same time, the accused had not denied or challenge the address given over the acknowledgement card as well as the other documents produced by the complainant and that the accused during his statement under Section 313 Cr.P.C. had also given the same address. Thus, decided this point against the accused. 16. The learned trial court ultimately held that the complainant had established his case against the accused and on the other hand, the accused failed to establish that the cheque was not issued towards discharge of any debt or other liability and held that the accused failed to rebut the presumption as provided under Section 139 of Negotiable Instruments Act and accordingly held the accused guilty of offence under Section 138 of Negotiable Instruments Act, 1881. 17. In the judgment passed by the Hon’ble Supreme Court reported in (2019) 5 SCC 418 (Basalingappa vs. Mudibasappa), the Hon’ble Supreme Court at Para-25 held as follows: - “25.1 Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3 To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4 That is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5 It is not necessary for the accused to come in the witness box to support his evidence.” 18. The learned lower appellate court allowed the appeal and set-aside the judgment of the trial court by holding that the accused had rebutted the presumption under section 139 of Negotiable Instruments Act, 1881 by applying the principles of ‘preponderance of probabilities’ and further the complainant could not discharge his burden of proof upon such rebuttal by the accused. 19. The learned lower appellate court has dealt with each of the points regarding rebuttal of presumption under Section 139 of Negotiable Instruments Act under different heads in para 12 of the judgment. (A) On the point whether accused is stranger to complainant. While deciding this point, the learned lower appellate court interalia considered that as per complainant, accused was badly in need of money for his business, but accused has stated on oath that he is an employee of Tata Commins and he has also said in his statement recorded u/s 313 Cr.PC that he is service man. It has also been considered that as per complainant, he and accused were well-known to each other and for that, reliance was placed that the address of accused mentioned in complaint petition has not been disputed, but on the other hand, the case of accused on oath is that he had lost cheque book, bank pass-book and other documents related to Tata Motor Finance (in which his address was mentioned) is also not improbable. (B) On the point of friendly loan; While considering this point the learned lower appellate court found that neither in the complaint, nor in the evidence, complainant has disclosed the date of giving loan, while the date of giving of post-dated cheque has been mentioned as 06-05-08 and also considered that the accused had taken defence by way of suggestion as well as by deposing evidence on oath that he had lost cheque book, Bank Pass-Book and other documents related to Tata Motor Finance for which he had given information to police station as well as the concerned bank on 08-05-2008 and took receipt of both document duly stamped by police station and concerned bank (Exhibit A and B). (C)Step taken by accused While considering this point the learned lower appellate court considered that naturally, if a blank cheque is stolen, then it was for the accused to take steps, so that it could not be misused. Accused has adduced evidence to the effect that he had lost cheque book, Bank Pass-Book and other documents related to Tata Motor Finance for which he had given information to police station as well as concerned bank on 08-05-2008 and took receipt of both documents duly stamped by police station and concerned bank (Exhibit A and B). It was also recorded that on the perusal of cheque in question as well as cheque-return-memo (and on admission of Complainant during cross-examination para 5) the court found that both complainant and accused were maintaining their accounts in same branch of Bank and during cross-examination complainant had admitted that he uses to go toward Govindpur, while D.W.1 and D.W.2 have consistently deposed that the cheque book, Bank Pass-Book and other documents related to Tata Motor Finance were lost in between the house of accused and Govindpur More. (D) The point regarding writing on the cheque The learned lower appellate court found that it is admitted by accused that he had put his signature on the blank cheque, which was lost and hence found it is necessary to compare the handwriting of other entries filled up on cheque with the admitted signature of accused on the strength of Section 73 of Indian Evidence Act. On comparison, the court found that the handwriting of other entries were entirely different from the signature on bare eyes and that the capital words only are used to write the name of payee with over-writing, while amount has been written by using small letters also. Further, the hand writing of digits showing account number also apparently differed from the digits showing amount as well as date filled up on cheque. The appellate court was of the view that this alone finding confirmed that the case of accused was more probable. 20. Upon considering the aforesaid points the learned appellate court held as follows:- “13. On the basis of above analysed evidence in totality, I am of the considered view that accused-appellant has discharged his reverse onus to rebut the presumption under Section139 N.I.Act as per the standard of proof required on the basis of 'preponderance of probabilities'. Now the onus would shift to the Complainant, to prove his case 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. 14. In the case at hand, complainant-respondent has miserable failed to prove its case as a matter of fact, after rebuttal of statutory presumption u/s 139 N.I. Act by accused-appellant and hence his failure to prove his case beyond reasonable doubt would certainly dis-entitle him for getting any relief. 15. Considering the cumulative effect of circumstances, which have been weighed by the learned Magistrate to order conviction in this case, it can not be said that the view taken by learned Magistrate is a plausible view for passing the order of conviction in the light of above findings, hence interference with the order of conviction, passed by learned Magistrate is warranted and accordingly the judgment of conviction as well as sentence passed against accused/appellant is hereby set aside. ………….” 21. This Court finds that the learned lower appellate court took into consideration that he had lost cheque book, bank pass book and other documents relating to Tata Motor Finance (in which his address was mentioned) is also not improbable. ………….” 21. This Court finds that the learned lower appellate court took into consideration that he had lost cheque book, bank pass book and other documents relating to Tata Motor Finance (in which his address was mentioned) is also not improbable. The learned lower appellate court upon comparison of writing on the cheque also found that the hand-writing and the other entries are entirely different from the signature on bare eyes and was of the view that case of the accused was more probable and considering the various circumstances of the case held that the accused had discharged his reverse onus to rebut the presumption under Section 139 of Negotiable Instruments Act, 1881 as per the standard of proof required on the basis of preponderance of probabilities and the complainant miserably failed to prove his case as a matter of fact after rebuttal of the statutory presumption under Section 139 of Negotiable Instruments Act, 1881 and hence failed to prove the case against the accused beyond all reasonable doubts. 22. This Court finds that the learned lower appellate court has dealt with every reason assigned by the learned trial court while dealing with the discharge of onus by the accused in connection with presumption under Section 139 of the Negotiable Instruments Act, 1881 and held that it cannot be said that the view taken by the learned trial court is a plausible view for passing the order of conviction and accordingly the judgment of conviction as well as the sentence passed against the accused was set-aside. 23. This Court finds that the learned lower appellate court had given number of reasons by holding that the accused has discharged his onus on the basis of preponderance of probabilities and the learned counsel for the petitioner while advancing his argument has assailed only one of the reasons by stating that the learned lower appellate court should not have entered into comparison of signature and the same was essentially in the domain of an expert and for that purpose he has relied upon a judgment passed by the Hon’ble Supreme Court reported in (1997) 7 SCC 110 and has referred to Paras 37 and 38, wherein the Hon’ble Supreme Court has held as under: “37.This section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in court, to give his specimen writing or fingerprints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself. 38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. [See: State (Delhi Admn.) v. Pali Ram]” 24. This Court finds that there is no complete bar in the power of the court to compare the disputed writing with the admitted writing and it has been held in Para-38 of the aforesaid judgment itself that this power is clearly available to the court under Section 73 of the Evidence Act. In the present case, as per the complainant himself, the signature in the cheque differed and the learned lower appellate court had made certain observations with regard to writings on the cheque itself while examining the case of the accused on the principles of ‘preponderance of probabilities’. 25. This Court finds that one of the reasons assigned by the learned appellate court for taking the view was by commenting and comparing the various entries made in the cheque. 25. This Court finds that one of the reasons assigned by the learned appellate court for taking the view was by commenting and comparing the various entries made in the cheque. It is not in dispute that as per the case of the complainant himself, the cheque had bounced due to both the reasons i.e. insufficient funds and signature differed and it was the specific case of the complainant that the accused had made his signature on the cheque in such a manner that it would differ. It was argued by the accused that the very fact that the cheque was dishonoured due to difference in signature itself shows that the cheque was never issued by the accused. However, the learned trial court proceeded with the matter considering the presumption under Section 139 of Negotiable Instruments Act, 1881 as the accused had taken a defence that the signed cheque book was lost along with other aforesaid documents and the learned appellate court proceeded by stating that it was an admitted fact that the accused had signed on the blank cheque and compared the hand writing of other entries in the cheque and found as follows:- (a) the handwriting of other entries was entirely different from the signature on bare eyes (b) The capital words only are used to write the name of payee with over-writing, while amount has been written by using small letters also. (c) The hand writing of digits showing account number also apparently differ from the digits showing amount as well as date filled up on cheque. 26. This Court is of the considered view that the learned lower appellate court has not done any illegality in making such comparison of signature/writings on the cheque. The judgment relied upon by the complainant (petitioner) does not help him in any manner whatsoever. 27. This Court finds that irrespective of the fact that the cheque was signed by the accused or not the learned appellate court has given four different cogent reasons to hold that the accused had rebutted the presumption under Section 139 of the Negotiable Instruments Act, 1881 on the standard of proof applying the principles of ‘preponderance of probabilities’. 28. 27. This Court finds that irrespective of the fact that the cheque was signed by the accused or not the learned appellate court has given four different cogent reasons to hold that the accused had rebutted the presumption under Section 139 of the Negotiable Instruments Act, 1881 on the standard of proof applying the principles of ‘preponderance of probabilities’. 28. This Court finds that in the instant case, admittedly the cheque had bounced due to insufficient funds and that the signature on the cheque did not match with the specimen signature of the accused in the bank. The specific case of the complainant was that the accused had put his signature in such a manner that the same may not match. The accused led evidence to the effect that the signed cheque book, bank pass book and other documents relating to Tata Motor Finance were lost for which necessary steps were taken and that neither the accused was a businessman nor the accused knew the complainant and that the accused was in fact working in Tata Cummins. Both the learned courts below examined the case from the point as to whether the accused discharged his onus and rebutted the presumption under Section 139 of the Negotiable Instruments Act, 1981 by raising a probable defence by applying the principles of ‘preponderance of probabilities’. 29. One of the main reasons assigned by the learned trial court while considering the discharge of onus by the accused was that if the accused and the complainant were strangers, then how could the complainant get the address of the accused for the purposes of issuance of notice and that the address is not disputed by the accused. This Court further finds that the learned lower appellate court also considered the defence of the accused that the signed cheque book and other documents relating to Tata Motor Finance and thus the address of the accused was available to complainant for the purposes of issuance of legal notice. 30. This Court further finds that the learned lower appellate court also considered the defence of the accused that the signed cheque book and other documents relating to Tata Motor Finance and thus the address of the accused was available to complainant for the purposes of issuance of legal notice. 30. This Court finds that the reasons for which the learned trial court held that the accused could not discharge his onus has been dealt with by the learned appellate court who recorded its findings on the point by a well-reasoned order and held that the accused had discharged his onus applying the principles of ‘preponderance of probabilities’ and while dealing with the issue also covered the reasons assigned by the learned trial court who took a contrary view. 31. This Court is of the considered view that the learned lower appellate court has rightly appreciated the evidences on record and rightly applied the principle of ‘preponderance of probabilities’ while holding that the accused had discharged his onus and the complainant could not discharge his onus upon it being shifted to the complainant. Accordingly, this Court is of the considered view that the learned lower appellate court has rightly reversed the judgment passed by the learned trial court. 32. As a cumulative effect of the aforesaid findings and there being no illegality or perversity in the impugned judgment passed by the learned appellate court, the present revision petition is dismissed. 33. Let the lower court records be immediately sent back to the learned court below. 34. Let a copy of this order be communicated to the learned court below through ‘e-mail/FAX’.