ORDER : M.B. Snehalatha, J. Revision Petitioner is the accused in C.C.No.97/2010 on the files of Judicial First Class Magistrate Court, Kalpetta. She assails the judgment in Crl.A.No.24/2016 of Sessions Court, Kalpetta by which the Sessions Court confirmed the conviction and sentence against her in C.C.No.97/2010 for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as ‘NI Act’). 2. The parties shall be referred to as complainant and accused. 3. The case of the complainant in brief is that accused borrowed a sum of Rs.5 lakhs from him in the 1st week of November 2009, agreeing to repay the same within three months. When demanded back the amount, accused issued Ext.P1 cheque for Rs.5 lakhs drawn on State Bank of India, Kainatty Branch. Upon presentation of Ext.P1 cheque, it was returned dishonoured due to 'insufficient funds' and also stating the reason 'drawers signature incomplete'. In spite of receipt of notice dated 27.3.2010, accused failed to pay the amount covered by the cheque. Accused thereby committed the offence punishable under Section 138 of N.I Act. 4. Accused pleaded not guilty to the accusation and denied the borrowal of any amount from the complainant and denied the issuance of Ext.P1 cheque to the complainant in discharge of any debt or liability. 5. Before the trial court, the complainant got himself examined as PW1 and marked Exts.P1 to P5. On the side of the accused, DW1 was examined and Exts.D1 to D6 were marked. 6. After trial, the learned Magistrate found the accused guilty of the offence punishable under Section 138 N.I Act and she was convicted and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5 lakhs with default custodial sentence. It was further ordered that the fine amount, if realised, shall be paid to the complainant as compensation. The conviction and sentence was confirmed by the Sessions Court, Kalpetta in Crl.A.No.24/2016. 7. It was further ordered that the fine amount, if realised, shall be paid to the complainant as compensation. The conviction and sentence was confirmed by the Sessions Court, Kalpetta in Crl.A.No.24/2016. 7. Assailing the said judgment of conviction and sentence accused has preferred this revision contending that the trial court and the appellate court miserably failed to appreciate the evidence in its correct perspective; that the accused has not borrowed any amount from the complainant and there was no legally enforceable debt; that the trial court and the appellate court failed to take note of the fact that O.S.No.180/2010 filed by the complainant against the accused before the Sub Court, Sulthanbathery for realization of the amount based on the very same cheque was dismissed by the Sub Court, Sulthanbathery with a finding that there was no financial transaction between the complainant and the accused and the complainant had no financial capacity to lend such a huge amount of Rs.5 lakhs. It was further contended that the complainant has not proved the execution of Ext.P1 cheque and therefore the conviction and sentence against the accused are liable to be set aside. 8. Per contra, the learned counsel for the complainant contended that the execution of Ext.P1 cheque by the accused for a legally enforceable debt stands proved and therefore there are no reasons at all to interfere with the impugned judgment. 9. The point for consideration is whether the impugned judgment needs any interference by this Court. 10. The version of the complainant, who was examined as PW1 is that in the 1st week of November 2009 accused approached him for a loan of Rs.5 lakhs, agreeing to repay the same within three months and accordingly, he lent an amount of Rs.5 lakhs to the accused. After three months, when he demanded back the amount, accused issued Ext.P1 cheque drawn on State Bank of India, Kainatty Branch. Though he presented Ext.P1 cheque for collection, it was returned dishonoured stating the reason ‘funds insufficient' and 'drawers signature incomplete’. Ext.P2 is the memo received from the bank. Ext.P3 is the copy of the notice sent to the accused intimating the factum of dishonour of the cheque. Ext.P4 is the acknowledgment card. Ext.P5 is the reply notice sent by the accused. According to PW1, the accused failed to pay the amount covered by Ext.P1 cheque. 11. Ext.P2 is the memo received from the bank. Ext.P3 is the copy of the notice sent to the accused intimating the factum of dishonour of the cheque. Ext.P4 is the acknowledgment card. Ext.P5 is the reply notice sent by the accused. According to PW1, the accused failed to pay the amount covered by Ext.P1 cheque. 11. Accused, on the other hand, would contend that she has no acquaintance with the complainant and has not borrowed any amount from the complainant. Her specific case is that she had borrowed certain amounts from one Hari and Rajesh and while borrowing the said amount, they had obtained two blank signed cheque leaves from her as security for repayment of the loan and Ext.P1 is one of such cheque leaf which was misused by the complainant at the instance of said Hari and Rajesh. 12. In view of the rival contentions, let us see whether the case of the complainant that the accused borrowed an amount of Rs.5 lakhs from him in November 2009 and in discharge of the said debt she issued Ext.P1 cheque to him stands proved or not? 13. The learned counsel for the complainant contended that in view of the presumption under Sections 118(a) and 139 of N.I.Act, this Court shall presume that there was consideration for Ext.P1 cheque and further it is to be presumed that Ext.P1 cheque was issued in discharge of a legally enforceable debt. 14. The learned counsel for the accused, on the other hand, contended that the complainant failed to establish that the accused borrowed an amount of Rs.5 lakhs from him and failed to establish that the accused issued Ext.P1 cheque to him in discharge of a legally enforceable debt. The learned counsel pointed out that based on the very same cheque, the complainant had filed a suit as O.S.No.180/2010 before the Sub Court, Sulthanbathery; that the said suit was dismissed by the Sub Court with a finding that the complainant herein failed to establish that the accused who was the defendant in O.S.No.180/2010, borrowed Rs.5 lakhs from him. It was contended by the learned counsel for the accused that the complainant who is an autorickshaw driver has had no financial capacity to lend a huge sum of Rs.5 lakhs and there is a finding to that effect in the judgment in O.S.No.180/2010. 15. It was contended by the learned counsel for the accused that the complainant who is an autorickshaw driver has had no financial capacity to lend a huge sum of Rs.5 lakhs and there is a finding to that effect in the judgment in O.S.No.180/2010. 15. The learned counsel for the accused contended that the finding of the civil court in O.S.No.180/2010 of Sub Court that no amount was due from the accused to the complainant is binding on the criminal court. In support of the said contention, he placed reliance on the decision reported in Prem Raj vs. Poonamma Menon and Ors. (MANU/SC/0257/2024). 16. It is a well settled principle that the standard of proof for rebutting the presumption under Section 139 of N.I.Act is that of the preponderance of probabilities and if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution under Section 138 N.I.Act fails. The 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 he relies. 17. In Rangappa Vs. Mohan [ 2010 (11) SCC 441 ], the Apex Court held as follows : “14……….Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, 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'. 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. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 18. In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde [ 2008 (4) SCC 54 ] the Apex Court held as follows : “34. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same.” 19. Thus, it is a settled position of law that the accused can prove his defence by drawing inferences from the materials already on record including the complainant’s evidence, circumstances of the case and also by leading his own evidence. Thus, it is a settled position of law that the accused can prove his defence by drawing inferences from the materials already on record including the complainant’s evidence, circumstances of the case and also by leading his own evidence. If the accused successfully creates doubts in the complainant’s claim about the existence of a legally enforceable debt, then the burden of proof shifts back to the complainant who is required to prove the guilt of the accused beyond reasonable doubt. 20. Ext.D6 is the judgment in O.S.No.180/2010 of Sub Court, Sulthanbathery. It would show that the complainant herein filed the said suit against the accused herein based on Ext.P1 cheque. In O.S.No.180/2010, the learned Sub Judge has rendered a finding that the plaintiff in that suit who is the complainant herein failed to establish his financial capacity to lend a huge sum of Rs.5 lakhs to the defendant who is the accused herein. The learned Sub Judge dismissed the suit with a finding that the plaintiff/complainant failed to prove that the defendant/accused herein borrowed Rs.5 lakhs from him and issued the cheque which was marked as Ext.A1 in the said suit in discharge of the debt and therefore, the plaintiff/complainant herein is not entitled to get a decree for realisation of money. It is an admitted case that the complainant, who was the plaintiff in O.S.No.180/2010 who suffered a decree of dismissal of O.S.No.180/2010, did not choose to prefer any appeal from the said judgment and decree of dismissal. Thus, the finding in O.S.No.180/2010 of Sub Court, Sulthanbathery that the plaintiff/complainant herein failed to establish that the defendant/accused borrowed Rs.5 lakhs from him and issued Ext.P1 cheque in discharge of the said debt has become final. In Ext.D6 judgment, there is an observation that the plaintiff/complainant herein even failed to identify the defendant/ accused before the said court. In the said circumstances, the defence canvassed by the accused that there was no transaction between her and the complainant and the complainant is only a name lender acting under the behest of one Hari and Rajesh as contended by her assumes significance. It is also to be borne in mind that even before presentation of Ext.P1 cheque by the complainant for encashment, she had sent Ext.D1 notice to Hari and Rajesh demanding return of signed blank cheque leaves and stamp paper. 21. In Bharat Barrel and Drum Manufacturing Company Vs. It is also to be borne in mind that even before presentation of Ext.P1 cheque by the complainant for encashment, she had sent Ext.D1 notice to Hari and Rajesh demanding return of signed blank cheque leaves and stamp paper. 21. In Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal [ 1999 (3) SCC 35 ], the Apex Court held thus : “Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of 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. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt……” 22. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt……” 22. In Prem Raj's case (supra) the accused had obtained a decree from a competent civil court in his favour declaring that the cheque in question was issued as a security but based on the dishonour of the said cheque, the complainant initiated criminal prosecution against the accused and the accused was convicted and sentenced for the offence under Section 138 N.I Act by the trial court and the conviction and sentence was confirmed by the Sessions Court and the High Court in appeal and revision. But the Hon’ble Apex Court set aside the said conviction and sentence by relying on the ratio in K.G. Premshanker vs. Inspector of Police and Ors. (MANU/SC/0771/2002) and held as follows : “11. The position as per Premshanker (supra) is that sentence and damages would be excluded from the conflict of decisions in civil and criminal jurisdictions of the Courts. Therefore, in the present case, considering that the Court in criminal jurisdiction has imposed both sentence and damages, the ratio of the above-referred decision dictates that the Court in criminal jurisdiction would be bound by the civil Court having declared the cheque, the subject matter of dispute, to be only for the purposes of security. 12. In that view of the matter, the criminal proceedings resulting from the cheque being returned unrealised due to the closure of the account would be unsustainable in law and, therefore, are to be quashed and set aside.” 23. In the case at hand, the accused has succeeded in rebutting the presumption under Sections 118(a) and 139 of N.I.Act. The complainant failed to establish that accused borrowed a sum of Rs.5 lakhs from him and issued Ext.P1 cheque to him in discharge of any debt or liability. Hence, the conviction and sentence against the accused for the offence under Section 138 N.I. Act is liable to be set aside. In the result, this Criminal Revision petition stands allowed. The conviction and sentence in C.C.No.97/2010 of Judicial First Class Magistrate Court, Kalpetta and in Crl.A No.24/2016 of the Sessions Court, Kalpetta stands set aside and the accused is acquitted. Her bail bond stands discharged.