JUDGMENT : This appeal has been filed by complainant in C.C No.1577 of 2003 on file of Judicial First Class Magistrate Court, Muvattupuzha challenging acquittal of 2nd respondent who was accused of an offence under Section 138 of Negotiable Instruments Act. complaint was filed alleging that 2nd respondent herein had in discharge of a debt, issued cheque No.327388 dated 30.12.2000 drawn on Catholic Syrian Bank, Koothattukulam branch for a sum of Rs.1,70,000/-and on presentation, said cheque was returned unpaid on ground of insufficiency of funds in account maintained by 2nd respondent/accused. complaint was filed after statutory notice and complying with all other formalities. 2. appellant/complainant was examined as PW1 and Exts.P1 to P11 were marked. From side of 2nd respondent/accused, DW's 1 to 3 were examined and D1 to D7 were marked. 3. learned Magistrate, on a consideration of matter found that complainant had failed to prove his case and accordingly, acquitted 2nd respondent/accused. 4. Sri.Peeyus A. Kottam, learned counsel appearing for appellant would submit that circumstances which led to finding that complainant has not proved his case can be seen (in summary) from paragraph 21 of impugned judgment. He submits that finding of learned Magistrate that cheque No.327388 was issued before 5.6.1995 at time when complainant had advanced a loan of Rs.40,000/-to 2nd respondent/accused is incorrect. According to him, circumstances taken into account by learned Magistrate was that there was evidence to show that cheque bearing No.327387 was presented on 23.05.1995, cheque bearing No.327392 was presented on 10.06.1995, cheque bearing No.327393 was presented on 05.06.1995 and cheque bearing No.327397 was presented on 17.07.1995 and that entire cheque book was exhausted on 07.02.1996. Further, a new cheque book was found to be issued on 29.03.1996 and accused presented cheque leaf-bearing No.238249 (from new cheque book) on 29.03.1996. learned counsel for appellant/complainant would submit that even according to case put forth by 2nd respondent/accused, a cheque bearing No.327387 was presented for encashment on 23.05.1995, whereas date of earlier loan admittedly availed by accused from complainant is 18.04.1995. From this, according to learned counsel for complainant, it is clear that cheque bearing No.327388 ( subject cheque) could not have been issued for loan availed on 18.04.1995. From this, according to learned counsel for complainant, it is clear that cheque bearing No.327388 ( subject cheque) could not have been issued for loan availed on 18.04.1995. He would submit that learned Magistrate went wrong in assuming that a new loan of Rs.1,70,000/-would not have been granted when old loan was outstanding and that amount of loan of Rs.1,70,000/-would not have been given in cash when earlier loan of Rs.40,000/-was given by way of cheque. He submits that learned Magistrate should have accepted case of complainant that loan of Rs.1,70,000/-was given in personal capacity. He submits that there was no warrant for learned Magistrate to assume that cheque was a blank cheque given as security for earlier loan. D2 and D3 documents do not, according to learned counsel, go against case of Complainant. learned counsel also contends that there was nothing illegal in giving a personal loan just because business of complainant is that of money lending. learned counsel for appellant would rely on judgment of Supreme Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106 to contend that principle that appellate court would be slow in setting aside a judgment of acquittal that two views are possible could not be applicable in case of a prosecution under Section 138 of Negotiable Instruments Act. He would further rely on judgment of Supreme Court in M. Abbas Haji v. T.N. Channakeshava, (2019) 9 SCC 606 to contend that failure to explain as to how cheque in question reached hands of complainant is fatal to defence. He also relies on judgment of Supreme Court in APS Forex Services (P) Ltd. v. Shakti International Fashion Linkers, (2020) 12 SCC 724 to contend that where issuance of cheque and signatures are not disputed, presumptions under Negotiable Instruments Act will kick in and for proposition and that it was wrong to shift burden of proving existence of a liability to complainant. In other words, according to learned Counsel, presumption under Section 139 of Negotiable Instruments Act, though rebuttable, should have operated in favour of Complainant in total absence of any acceptable evidence to rebut that presumption from side of defence. 5. In other words, according to learned Counsel, presumption under Section 139 of Negotiable Instruments Act, though rebuttable, should have operated in favour of Complainant in total absence of any acceptable evidence to rebut that presumption from side of defence. 5. learned counsel for 2nd respondent/accused would rely on judgment of this Court in Joshy P G v. Jose Varghese and Another, 2019 (4) KHC 753 to contend that where an accused in a prosecution under Section 138 of Negotiable Instruments Act has fairly and reasonably established that case put up by complainant is highly improbable, complainant cannot rely on statutory presumption any longer. He would also refer to Division Bench judgment of this Court in Basheer K v. C.K.Usman Koya and Another, 2021 (2) KHC 432 for proposition that where accused has succeeded in rebutting presumption under Negotiable Instruments Act, burden shifts to complainant to prove consideration and on failure to do so, accused is entitled to be acquitted. 6. I have considered contentions raised. first circumstance taken into account by learned Magistrate to hold that 2nd respondent/accused was entitled to an acquittal is fact that cheque No.327388( subject cheque) could not have been one which was issued close to time at which it was stated to have been issued. According to appellant/complainant, loan of Rs.1,70,000/-was given on 26.12.2000 and in discharge of this debt, subject cheque bearing No.327388 was issued on 30.12.2000. Based on evidence tendered by 2nd respondent/accused, learned Magistrate found that immediately previous cheque, namely cheque bearing No.327387 was presented for encashment on 23.05.1995, that cheque bearing No.327392 was presented for encashment on 10.06.1995 and cheque bearing No.327397 was presented for encashment on 17.07.1995. learned Magistrate took note of fact that entire cheque book, which also contained subject cheque bearing No.327388, was exhausted on 07.02.1996 and a new cheque book was issued on 29.03.1996 and further that 2nd respondent/accused had presented cheque bearing No.238249 from new cheque book on 29.03.1996. aforesaid findings of learned Magistrate based on Ext.D4 passbook of accused cannot be faulted. mere fact cheque bearing No.327387 ( subject cheque bears No.327388) was presented for encashment only on 23.05.1995 and fact that earlier loan admittedly availed by accused from complainant is 18.04.1995 does not, in any manner, suggest that subject cheque was not issued as a security for loan availed on 18.4.1995. There may have been many reasons for earlier cheque having been presented later. There may have been many reasons for earlier cheque having been presented later. Considering totality of evidence, I think that case put forth by 2nd respondent/accused cannot be disbelieved, as it is admitted case that there was a transaction between parties in year 1995 as is evident from fact that an amount of Rs.40,000/-was credited to account of 2nd respondent/accused through cheques issued by complainant on 18.04.1995 and 29.04.1995. loan of Rs.1,70,000/-was reportedly given on 26.12.2000. It is highly improbable that a cheque leaf from a cheque book that got exhausted on 07.02.1996 would have been used on 30.12.2000 in discharge of a liability for a loan taken on 26.12.2000. Therefore, I am in complete agreement with view taken by learned Magistrate that there is evidence to show that cheque in question was not issued in discharge of alleged liability of Rs.1,70,000/-. 7. learned Magistrate has also found from Exts.D2 and D3 that earlier loan stood discharged. Though appellant/complainant disputed fact that earlier loan had been discharged, learned Magistrate found from Exts.D2 and D3 receipts that signature of appellant/complainant stood proved. A comparison of admitted signature of appellant/complainant with signatures in Exts. D2 and D3 was clearly an exercise authorized under Section 73 of Indian Evidence Act. 8. As rightly held by learned Magistrate there is no admission of repayment of loan amount of Rs.40,000/-on 26.12.2000. statement that another loan of Rs.1,70,000/-was given in cash by appellant/complainant, who was admittedly a money lender at time when earlier loan of Rs.40,000/-remained unpaid was clearly a circumstance that could be taken note of in concluding that transaction (loan of Rs.1,70,000/-) was quite improbable. case of 2nd appellant/complainant that second transaction with 2nd respondent/accused was in his personal capacity was only to get over defence of 2nd respondent/accused that he had discharged earlier liability and that there was no further liability subsisting to be paid off to appellant/complainant. 9. documents produced by appellant/complainant (Exts.P9 Daybook, P8 DPN register and P10 & P11 Counterfoils of receipts book) were also not accepted by learned Magistrate, as details of earlier loan which was admittedly paid by cheque were also not entered in Ext.P9 Daybook. 10. I think that this is a case where 2nd respondent/accused has been successful in rebutting statutory presumption under Section 139 of Negotiable Instruments Act. 10. I think that this is a case where 2nd respondent/accused has been successful in rebutting statutory presumption under Section 139 of Negotiable Instruments Act. fact that there was an earlier transaction in year 1995 and that liability had been settled by repayment is a factor which would lend credence to case of 2nd respondent/accused that Ext.P1 cheque was one issued as security in discharge of that liability and such cheque was misused by appellant/complainant to make it appear that there was a subsequent transaction. In totality of facts and circumstance of this case, this Court should not interfere with findings rendered by trial court. As held by this Court in Basheer K (supra) when accused has succeeded in rebutting presumption, it is for complainant to prove existence of a debt in discharge of which subject cheque was issued. I have found that 2nd respondent/accused has succeeded in showing that statutory presumption under Section 139 of Negotiable Instruments Act should not be applied. In other words 2nd respondent/accused has been able to rebut statutory presumption. appellant/complainant has not thereafter been able to bring in any evidence suggesting existence of a transaction resulting in a legally enforcible debt payable by 2nd respondent/accused. Therefore, prosecution of 2nd respondent/accused under Section 138 of Negotiable Instruments Act must necessarily fail. decisions cited at bar by learned counsel for appellant, do not support his case especially when this Court is of view that 2nd respondent/accused has succeeded in rebutting statutory presumption under Section 139 of Negotiable Instruments Act. Appeal fails and will stand dismissed.